https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8093

Njuguna v Republic (Criminal Appeal E077 of 2020) [2026] KEHC 8093 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8093 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E077 of 2020 S Mbungi, J June 5, 2026 Between Peter Kinuthia Njuguna Appellant and Republic Respondent (Being an appeal from the judgment delivered on 11/06/2025 by Hon. E.W. Wambugu– PM AT Kandara in Criminal Case S.O No. E112 of 2020) Judgment 1.The appellant herein is, PETER KINUTHIA NJUGUNA, was charged with the offence of defilement contrary to section 8 (1)(2) of the Sexual Offences Act, No. 3 of 2016. The particulars of the offence are that on 25/12/2020 at 1500 hours at Gatanga Sub County within Murang’a County, he intentionally caused his penis to penetrate the vagina of S.W.M. a child aged 8 years. 2.The Appellant was also charged with an alternative count on the alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on 25/12/2020 at 1500 hours at Gatanga Sub County within Murang’a County, he intentionally touched the vagina of S.W.M. a child aged 8 years with his penis. The accused person pleaded not guilty to the charges. Facts at the Trial 3.The appellant pleaded not guilty to both charges and the case moved to full trial. The prosecution set out to prove their case by calling three witnesses. 4.PW1 was SWM, the complainant. Following a voire dire examination , she gave an unsworn evidence. She stated (in Kiswahili )that , I am SWM, I am in [Particulars withheld]Primary School in Class 4. That two years ago they were living in [Particulars withheld]. Her mother EM was a casual plucking tea leaves. That on 25/12/2020 in the evening my brother, EN was with Maina Kinuthia (pointed at the accused) sent them to fetch leaves to light fire. That Kinuthia pulled her into his kitchen made of timber in the plot. The main house was separate from his kitchen. He then removed his trouser and her trouser. He pulled up “kitu yake ya kukojoa” while sitting on a wooden seat. He took her and made her sit on him while facing him. He did “tabia mbaya” to her by inserting “kitu yake ya kukojoa ndani ya yangu hapa katikati” (pointed at her private part). I felt pain and started bleeding. Her brother E and Maina came with leaves. That the accused pushed her away. 5.That when she tried to talk the accused blocked her mouth. He then told her if she spoke he will kill her, He sent her brother to fetch other leaves. Then Kinuthia took her hand and took her to his house. He pushed her on his bed and lay on top of her. He did “tabia mbaya” to her. When her brother and Maina entered accused’s house the latter closed the door. The Accused opened the door and I left. Mama Maina and accused fought at that time. Mama Maina is called Waithera. The two had differed. She told Waithera that the accused did “tabia mbaya” to her. Her mother was not there. Waithera checked her private part and confirmed she called her mother who came and checked me. Her mother reported to the police at Ndakaini. An officer called Alice arrested the accused who was asleep in his house her mother took her to the hospital. She was treated at Kirwara hospital by a doctor, her mother was given an item to insert in her private part. It was inserted and the doctor sent my mother to purchase drugs. Then my mother bought me food at Gatura and gave me one of the drugs. I vomited and was given drinking water. We went back home. The next morning I was given drugs and vomited. My mother decided not to give me those drugs again. 6.PW2 was EMK. She stated that she is a casual labourer. She plucks tea leaves and she lives in [Particulars withheld]. That on 27/12/2020 at 1200 hours she was fetching tea leaves. At 2 to 3pm she went to Kimandi centre to purchase food for supper. She found her child, SWM crying. She was in the company of a lady called Waithera. She enquired what had happened. Her daughter did not tell her but Waithera told her that Kinuthia did ‘’tabia mbaya’’ to her child. She went with her daughter to the kitchen and asked what happened. She told her that she was with her brother, E Nganga and Waithera’s son called Maina when Kinuthia called them to his house. They went the three of them. Kinuthia sent E and Maina to fetch leaves for lighting fire and remained behind with W. Then he made her sit on his thighs. He removed his penis and “akanidunga na kitu yake kwa kitu yangu ya kukojoa” she screamed. E and Maina came to the house. Kinuthia blocked her mouth and threw W out where I found her with Waithera . She had the phone number of OCS Ndakaini Police Station. She called and was told to take the child to the chief. She took her to the chief who referred the case to the police. She went to Ndakaini police station and was issued with a note and took child to Kirwara hospital. She was examined and I was told she was defiled. She was given treatment records before court by the doctor. 7.Treatment note PMF1 1 ,PMF1 2 ,PMF1 3 P3 ,form Lab request form 8.She took the documents to the station. The OCS, officers Alice, Eliza and another went with them to the plot. They entered the house and found Kinuthia asleep. He was arrested and taken to the station. She identified the accused in the dock as Kinuthia. She stated that they worked together in the same farm and that she does not have any debt belonging to the accused she produced her child’s birth certificate. PMF1 4. 9.During cross-examination, she stated that she knows the accused and believes he committed the offence against her daughter (the complainant) on 25/12/2020. She based this on what her daughter told her after she found her crying. She confirmed that Waithera laid the child on the bed and checked her private parts, discovering her vagina was open, which she also personally saw. 10.PW3 was PC Alice Njoroge , She stated that works at Ndakaini Police Station. That she recalls on 28/12/2020 she checked the OB and found a defilement case assigned to her. The victim was S, aged 8 years. She was born on 18/4/2013 according to her birth certificate. She came to the station with her mother. They were referred to hospital for examination. The complainant was treated at Kirwara Hospital and her P3 form was filled. She received the treatment note (PMF1 1 and 2). She requested for witnesses. Salome and her mother recorded statements. The complainant said the accused was her neighbor. He called her to his house and sat her on his thighs. He removed his trouser and inserted his penis in her vagina. At the time, he took a knife and threatened to cut her stomach if she reported to anyone. He also told her to leave and still threatened to kill her if she reported. 11.Due to fear, the complainant did not tell her mother immediately. The next day she reported to her neighbor and called her mother. Her mother went and decided to check her since she had not bathed. She had difficulties getting on top of the bed. Her private part was swollen and had a bad oduor. Her panty had bad blood stains and bad oduor. She produced the panty (PExh.5). I concluded that the accused was the perpetrator. She arrested and charged him. Kinuthia is the one in the dock. I produced the birth certificate (PExh. 4). The doctor confirmed the complainant suffered maim injuries. 12.PW 4 was Doctor Gachanja Kamau. He stated that he had the treatment card and the P3 form belonging to SWM , a female aged 8 years. The complainant had a history of defilement by a person called Kinuthia in that he pulled her into his house and inserted his male organ in her private part. Her mother saw blood on her panty and walking it difficulties. Upon examination the hymen was broken and the complainant had pain on vaginal walls. The VDRL test , urinalysis test and high vaginal swab test was negative. He concluded that there was defilement. 13.On cross-examination , he stated that he examined the complainant and her hymen was broken, there were some tenderness on vaginal forcets . Defense case 14.DW1 was Peter Kinuthia Njugunaa a tea plucker aged 57years old. He used to manage tea of Wilson Njoroge Muhia. He had worked there for 7 years without any differences without anyone. That on 27.12.2020 at 8am on a Sunday .He had a disagreement with complainant’s mother called EM and her friend Rosemary Waithira. We had a chama of 5 people. We each used to contribute kshs.500 and would give the amount to one person every Sunday.[Particulars withheld] who was the treasurer. She told him she had used the money and had no money. He got annoyed. 15.He entered her house and picked her stove. He told her I would return it when she gives him his money. Rosemary intervened with abuses. He got annoyed and slapped her. She screamed. Our employer heard while in his house. He came with his daughter. We explained what happened. He told him to return the stove and he will give the money. He did that. He left them in the plot and went back to his home. At 1pm complainant’s mother and Rosemary packed their clothes and went to the road. They came back with 2 motorcycles. They loaded their luggage and children. They left. At 7pm complainants mother came to his house and called him. He went out and found her with 3 men. She told them he was the one. He found himself at Ndakaini police station. That the next day he was called to the office and interrogated and he was told that PW2 said that on 25/12/2020 at 3 pm he defiled the complainant”. He recorded his statement and on 29/12/2020 he was brought to court and charged with the offence of defilement. During cross-examination by the prosecution the accused stated that he had a bad relationship with the mother of the complaianant. He also stated that the complainant was 8 years old and that the complainant was guided by her mother and Rosemary on what to tell the court. He confirmed that he was supplied with the P3 form but alledged that a doctor can be compromised. The Appea 16.Dissatisfied by the decision of the trial court, the accused lodged a petition to appeal the decision. The appeal by Peter Kinuthia Njuguna is premised on the following grounds as set out in the petition of Appeal:a.That , the prosecution’s case was not proved beyond reasonable doubtb.That , the main ingredient of the offence that is penetration , age and identification were not proved.c.That , the victim was not truthful.d.That , the medical evidence did not link / connect the appellant to the offence.e.That , the prosecution case was marred with gross contradictions, inconsistencies and irregularities. Appellant’s Case 17.The appeal was canvassed by way of written submissions . In his submissions the appellant contended that the trial court failed to analyze and evaluate the evidence hence failing to establish the key elements of penetration. He cited section 2 of the Sexual Offences Act and submitted that for penetration to be proved the prosecution must establish the actus rea, mens rea , proof that the accused is the perpetrator and corroboration through surrounding circumstances. He stated that the fact surrounding facts such as exact time and place and conduct of key players was not proved. He also stated that the medical evidence confirmed a broken hymen which could have been contributed by the fact that the mother inserted an item in her private part and since there were no lacerations or bruises does not find the appellant criminally culpable. Moreover there were no forensic , eye witness testimony or circumstantial facts that linked the accused to the act. 18.He relied on the case of Mukuna V Republic [2025] KEHC 918 (KLR) to submit that medical evidence alone without corroborative linkage to the accused does not sustain a conviction. He also submitted that the accused right to fair trial was violated because the trial court failed to assess the totality of evidence and relied on medical findings hence a high possibility of miscarriage of justice is likely to occur. The appellant also submitted that ( SWM testimony had contradictions since she gave two places where she was defiled, the kitchen and the main house. SWM is a minor and is not sexually active. The blood stained panty was not linked to the scene of the crime and was not even shown in the court during trial. Threats involving a knife were not proved . The complainants age could not allow her withstand penetration by an adult. The presence of minors nearby (her brother and Maina), raises question on how such acts would occur unnoticed. 19.The appellant relied on the case of Kaaman V Republic [2024] to submit that the prosecution must prove beyond reasonable doubt and that contradictions in the complainants testimony can render a conviction unsafe. He submitted that in defilement cases three elements must be proved that is age of the victim, penetration and identity of the perpetrator penetration must be established through credible medical or direct evidence. 20.On the second issue the appellants submitted that the trial court reliance on inadmissible documents such as ; a photostat copy in the name of a birth certificate, treatment notes, lack of age assessment report and an exhibit in the name of a panty was wrong saying that as per section 35 of the evidence Act secondary evidence is only admissible in specific circumstances, he referred the Court to Section 64, saying that hearsay evidence is admissible in specific conditions, and Section 67 that says documents must be properly authenticated before admission. 21.The appellant further argued that evidence obtained or admitted in violation of statutory or constitutional safeguards has to be excluded unless its probative value substantially outweighs its prejudicial value. He argued that the improperly admitted evidence was substantially prejudicial. He relied on the case of Karimi V Republic [2016] to submit that age must be proved by original documents and photostat copies are uncertified unless justified. He reffered the court to the case of Musili Tulo V Republic , where a conviction was quashed due to reliance on uncorroborated and improperly admitted evidence. The Appellant respectfully submits that the conviction was unsafe and ought to be quashed because it was founded on unreliable, contradictory, and improperly admitted evidence. 22.The Appellant also submitted that the vital witnesses herein were not honest, credible and straightforward for reliability. The evidence presented before the trial court contained material inconsistencies and contradictions regarding the circumstances of the alleged offence and the reporting thereof. The witnesses gave differing accounts on key aspects of the case, casting doubt on the truthfulness and accuracy of their testimony. It is submitted that the trial court failed to adequately evaluate these inconsistencies before arriving at a conviction. 23.The Appellant further contends that the complainant's testimony may have been influenced or coached by adults. Given the developmental vulnerabilities of child witnesses, courts are required to exercise caution when assessing their evidence. Research and established guidelines on child testimony recognize that children can be susceptible to suggestion, leading questions, and external influence. The complainant's testimony allegedly contained language and descriptions beyond her developmental stage, raising concerns as to whether the account was entirely spontaneous and independent. 24.Additionally, the conduct of the investigation was flawed and failed to resolve the contradictions that emerged during the trial. The investigating officer's testimony introduced facts that were either unsupported by other witnesses or inconsistent with the evidence on record. These shortcomings weakened the prosecution's case and undermined the reliability of the evidence relied upon by the trial court. 25.The Appellant also submits that, as an unrepresented accused person, he was placed at a disadvantage during the proceedings and was unable to effectively challenge the prosecution's evidence. Despite raising a defence, the trial court allegedly failed to give due consideration to his explanation and instead focused predominantly on the prosecution's version of events. 26.In light of the foregoing, the Appellant argues that the prosecution failed to prove its case beyond reasonable doubt. The cumulative effect of the evidential inconsistencies, concerns regarding witness credibility, and procedural irregularities rendered the conviction unsafe. The Appellant therefore prays that the appeal be allowed, the conviction be quashed, and the sentence set aside, or such other orders be made as the Court deems just and appropriate. 27.The Appellant challenges both the conviction and the sentence of life imprisonment, arguing that they are unlawful, unconstitutional, and unjust. The Appellant submits that a life sentence without any realistic prospect of release undermines the principles of justice and human dignity protected under the Constitution. Reliance is placed on Article 50(2)(p) of the Constitution, which guarantees an accused person the benefit of the least severe punishment where appropriate, and Section 26(2) of the Penal Code, which has been interpreted in a manner that creates uncertainty regarding the nature and duration of life imprisonment. 28.The Appellant further argues that the sentence imposed was harsh, excessive, and disproportionate in the circumstances of the case. It is submitted that sentencing should primarily aim at rehabilitation and reform rather than punishment alone. The Appellant, being an elderly person who has already exceeded the average life expectancy for Kenyan males, is unlikely to benefit from rehabilitation if required to serve a life sentence. The court is therefore urged to consider the Appellant’s age, personal circumstances, and previous contribution to society as mitigating factors warranting a reduction of the sentence. 29.It is also contended that the trial court failed to properly apply the principles governing sentencing. Although the sentence imposed was lawful, the trial magistrate allegedly overlooked important procedural requirements contained in Section 333(2) of the Criminal Procedure Code and the Sentencing Policy Guidelines, 2016. The Guidelines require courts to balance aggravating and mitigating factors before imposing sentence and to ensure consistency, fairness, and proportionality. The Appellant argues that these principles were not adequately considered before the life sentence was imposed. 30.The Appellant further submits that life imprisonment should be reserved for the most serious and exceptional cases, particularly involving repeat or highly dangerous offenders. Given its severe and permanent effect on an offender’s liberty, such a sentence ought to be imposed with great caution. In the present case, the Appellant argues that the sentence was disproportionate to the circumstances and therefore unjustified. 31.Regarding the conviction, the Appellant maintains that the trial was affected by procedural irregularities, contradictions in the evidence, lack of corroboration, and failure to establish all the essential elements of the offence beyond reasonable doubt. It is argued that the conviction was based on doubtful identification evidence, contradictory medical evidence, and speculative testimony. Consequently, the conviction is said to be unsafe and incapable of supporting a lawful sentence. 32.The Appellant therefore submits that upholding the conviction and life sentence would violate constitutional protections, including the right to freedom and security of the person under Article 29 of the Constitution. The Court is urged to find that the conviction was unsafe, allow the appeal, quash the conviction, set aside the sentence of life imprisonment, and order the Appellant’s immediate release unless otherwise lawfully held. Respondent's Case 33.The Respondent submits that the appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, 2006, and in the alternative with committing an indecent act with a child contrary to Section 11(1) of the same Act. During the trial, all pre-trial procedures were complied with and the prosecution called four witnesses to testify in support of its case. At the close of the prosecution's case, the trial court found that a prima facie case had been established and consequently placed the appellant on his defence, where he gave sworn testimony. 34.Upon considering all the evidence presented, the trial court found that the prosecution had proved the offence of defilement beyond reasonable doubt. The appellant was therefore convicted and sentenced to life imprisonment. The court did not make any finding on the alternative charge since the main charge had been proved. Dissatisfied with both the conviction and sentence, the appellant lodged the present appeal challenging the trial court's decision. 35.The appellant's grounds of appeal are that the prosecution failed to prove its case beyond reasonable doubt, failed to establish the essential elements of penetration, age, and identification, relied on an untruthful complainant, and failed to produce medical evidence linking him to the offence. He further contends that the prosecution's case was riddled with contradictions, inconsistencies, and irregularities. Consequently, the appellant urges the appellate court to allow the appeal, quash the conviction, set aside the sentence, and order his release. 36.In their submissions, the prosecution submits that the offence of defilement was proved in accordance with Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006, which requires proof of three essential ingredients: the age of the victim, penetration, and proper identification of the perpetrator. They relied on the case of George Opondo Olunga v Republic [2016] eKLR to submit that these elements must each be established beyond reasonable doubt before a conviction can ensue.On the issue of age, the prosecution submits that the complainant was eight years old at the time of the offence. 37.They relied on the testimony of the victim’s mother and the production of a birth certificate as documentary evidence. They further argued that the court, having conducted a voire dire examination, found the child truthful and intelligent enough to give sworn testimony. In support of this position, they relied on Edwin Nyambogo Onsongo (2016) eKLR, where it was held that age may be proved through documents such as a birth certificate or baptism card, oral evidence of the child or guardian, or medical evidence.On penetration, the prosecution submits that medical evidence was adduced through PW4, a doctor, who examined the victim and found that her hymen was broken and she had pain and tenderness on the vaginal fourchette. He concluded that the nature of injury was consistent with defilement. The doctor produced the treatment card, P3 form, and laboratory request form as exhibits. 38.The prosecution further argued that this testimony was tested under cross-examination and was not rebutted .On identification, the prosecution submits that the victim recognized the appellant, who was well known to her, and that he threatened her with a knife to prevent disclosure. They relied on MW v Republic [2019] eKLR, where the High Court held that recognition drastically reduces the possibility of mistaken identity. They further argued that the evidence of recognition was solid and credible, and that proper investigations were conducted, including the recording of statements from crucial witnesses and timely medical examination. 39.On corroboration, the prosecution submits that Section 124 of the Evidence Act provides an exemption from the strict corroboration rule in sexual offences, acknowledging that such offences often occur in private and lack eyewitnesses. They argued that in this case, the victim’s testimony was corroborated by medical evidence. They relied on Joseph Ndetu Kimunyu v Republic [2018] eKLR, where the court held that it can convict on the basis of uncorroborated testimony of a victim of sexual violence if convinced of the victim’s truthfulness.The prosecution further argued that the defence advanced by the appellant was a mere denial, supported by witnesses who could not establish his whereabouts at the material time. 40.They submitted that the defence was unbelievable and unacceptable, while the prosecution’s evidence was consistent, credible, and sufficient to discharge the burden of proof beyond reasonable doubt.On sentencing, the prosecution submits that the trial magistrate properly imposed life imprisonment, which is the mandatory sentence under Section 8(2) of the Sexual Offences Act for defilement of a child below 11 years. They argued that the sentence was lawful, proportionate, and deterrent, considering the rising cases of defilement. They further submitted that the appellant caused untold mental anguish to the complainant, robbing her of her innocence, and that the sentence was commensurate with the gravity of the offence.In conclusion, 41.The prosecution submits that all the ingredients of defilement were proved beyond reasonable doubt, that the conviction was proper, and that the sentence of life imprisonment was lawful and should not be interfered with. They therefore urged the court to dismiss the appeal for lack of merit. Analysis and Determination 42.This being a first appellate court , it is enjoined to reconsider and re-evaluate the evidence tendered before the trial court and draw its own independent conclusions, while bearing in mind that it did not have the opportunity to see or hear the witnesses testify. The duty of a first appellate court was stated in the case of Kiilu & Another vs. Republic [2005] eKLR , where the Court of Appeal held that : 43.“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. 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; it must make its own findings and draw its own conclusions.” 44.I have considered the grounds of appeal, the evidence adduced in the lower court, and the rival submissions of parties. I find the main issues for determination to be ;I.Whether the elements under the Sexual Offences Act that are required for proof of penetration was proved beyond reasonable doubt.II.Whether the victim and the other witnesses were truthfulIII.Whether the prosecution’s case was marred with gross contradictions, inconsistencies and irregularities.IV.Whether the medical evidence did not link the appellant to the accused.V.Whether the Sentence of Life Imprisonment Was Lawful, Constitutional and Proportionate ISSUE I: Whether the Elements Required for Proof of Penetration Were Proved Beyond Reasonable Doubt 45.Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006,provides that any person who commits an act which causes penetration with a child is guilty of an offence. The three essential ingredients that the prosecution must prove beyond reasonable doubt are: (a) the age of the victim; (b) penetration; and (c) the identity of the perpetrator. This position was firmly established in George Opondo Olunga v Republic [2016] eKLR, where the Court of Appeal held that these three ingredients must each be established beyond reasonable doubt before a conviction can ensue. 46.On the issue of age, the prosecution led evidence through PW3, the complainant's mother, who testified that the complainant was born on 18th April 2013. The complainant's birth certificate was produced as (PExh. 4) showing her date of birth as 18th April 2013. At the time of the offence on 25th December 2020, the complainant was 8 years old, squarely falling within the bracket of children aged below 11 years under Section 8(2) of the Sexual Offences Act. The appellant's contention that a photostat copy of the birth certificate was inadmissible is without merit. In Edwin Nyambogo Onsongo v Republic [2016] eKLR, the court held that age may be proved through documents such as a birth certificate or baptism card, oral evidence of the child or guardian, or medical evidence. The birth certificate was properly identified by PW3 and admitted without objection during trial. The trial court properly found that the age of the complainant was proved beyond reasonable doubt. 47.On penetration, the prosecution produced both direct and medical evidence. PW1 , gave a detailed account of how the appellant pulled her into his kitchen, removed his trousers and her trousers, made her sit on him while facing him, and inserted his penis into her vagina. She stated she felt pain and started bleeding. This account was corroborated by PW2, who testified that her daughter told her that the appellant made her sit on his thighs, removed his penis, and inserted it into her private part. PW4 examined the complainant and found that her hymen was broken and she had pain and tenderness on the vaginal fourchette. He concluded that the nature of the injuries was consistent with defilement. On cross-examination, the doctor was firm that there was no other cause for the broken hymen. 48.The appellant's argument that the broken hymen could have been caused by the mother inserting an item in the complainant's private part is unsupported by any evidence. As held in Mohamed Swaleh Slaim v Republic [2021] eKLR, penetration must be established through credible medical or direct evidence. In this case, both credible medical evidence and direct testimony from the complainant established penetration. The trial court was entitled to rely on the complainant's testimony, which was found to be truthful after a voire dire examination, and the medical evidence that corroborated her account. 49.The appellant further argued that the complainant mentioned two places where the alleged defilement occurred , the kitchen and the main house and that this inconsistency undermined the proof of penetration. I find this argument unconvincing . The complainant's testimony, read as a whole, describes a continuous sequence of events: the appellant first pulled her into the kitchen, committed the first act, then took her to his main house where he pushed her onto the bed and committed a further act. These are not contradictory locations. As stated in Kaaman v Republic [2024], minor contradictions that do not go to the root of the prosecution's case do not render a conviction unsafe. 50.The appellant's submission that an 8-year-old child could not withstand penetration by an adult is legally irrelevant. The law does not require proof that the complainant "withstood" penetration; it only requires proof that penetration occurred. The medical evidence of a broken hymen and vaginal tenderness is sufficient proof of penetration, regardless of the complainant's physical capacity to withstand the assault. In Hussein Mohamed v Republic [2019] eKLR, the court held that the testimony of a child victim, when credible and corroborated by medical evidence, is sufficient to establish penetration. 51.I therefore find that the prosecution proved penetration beyond reasonable doubt. ISSUE II: Whether the Prosecution's Case Was Proved Beyond Reasonable Doubt 52.The standard of proof in criminal cases is proof beyond reasonable doubt. In the case of Woolmington v DPP [1935] AC 462, the court held that that the prosecution must prove the guilt of the accused. The prosecution called four witnesses: the complainant (PW1), her mother (PW2), the investigating officer (PW3), and the examining doctor (PW4). Each witness gave consistent and credible testimony that interlocked to form a compelling case against the appellant. The complainant identified the appellant as the perpetrator; her mother confirmed the reporting and medical examination; the investigating officer confirmed the arrest and production of exhibits; and the doctor confirmed the injuries consistent with defilement. 53.The appellant's defence was a denial unsupported by any credible evidence. He claimed that the charges were fabricated due to a dispute over a chama contribution. However, this defence was effectively demolished under cross-examination. The appellant admitted he had a bad relationship with the complainant's mother, which actually provides a motive for his conduct and explains why the complainant may have been initially reluctant to report the offence. His claim that the complainant was "guided" by her mother and Rosemary Waithera is pure speculation with no evidentiary foundation. 54.In Erick Onyango Onditi v Republic [2024] eKLR, the Court of Appeal held that a defence of mere denial, unsupported by credible evidence, cannot displace the prosecution's case that has been proved beyond reasonable doubt. The appellant's defence falls squarely within this principle. 55.I find that the prosecution discharged its burden of proof beyond reasonable doubt. ISSUE III: Whether the Victim and Other Witnesses Were Truthful 57.The credibility of witnesses is primarily a matter for the trial court, which had the advantage of seeing and hearing the witnesses testify. As stated in Kiilu & Another v Republic [2005] eKLR, an appellate court should give due allowance to the trial court's assessment of witness credibility. 58.The complainant, PW1, was an 8-year-old child who testified after a voire dire examination. The trial court found her to be truthful and intelligent enough to give unsworn evidence. Her testimony was detailed and contained age-appropriate descriptions of the assault. She used childlike language such as "kitu yake ya kukojoa" and "tabia mbaya," which demonstrates that her testimony was not coached but rather her own account of the traumatic events. The appellant's argument that her testimony contained language beyond her developmental stage is unfounded. An 8-year-old child is perfectly capable of describing basic anatomical functions and harmful acts in simple terms. 59.In Joseph Ndetu Kimunyu v Republic [2018] eKLR, the court held that it can convict on the basis of the uncorroborated testimony of a victim of sexual violence if convinced of the victim's truthfulness. In this case, the complainant's testimony was truthful and corroborated by medical evidence and the testimony of her mother and the investigating officer. PW2 was a credible and straightforward witness.The appellant's suggestion that she coached her daughter is baseless and contradicted by the evidence that the complainant first disclosed to Waithera before her mother even arrived. 60.PW3 conducted a professional investigation, recorded statements, and produced the birth certificate and the complainant's blood-stained panty (PExh. 5). Her testimony was consistent with the other prosecution witnesses and demonstrated proper police procedure. PW4 was a qualified medical practitioner whose evidence was objective and professional. He confirmed the broken hymen, vaginal tenderness, and concluded that the injuries were consistent with defilement. His testimony was tested under cross-examination and remained unshaken. 61.I find that all the prosecution witnesses were truthful and credible. ISSUE IV: Whether the Prosecution's Case Was Marred with Gross Contradictions, Inconsistencies and Irregularities 64.The appellant raised numerous allegations of contradictions and inconsistencies. I have carefully examined each of them and find them to be minor and not going to the root of the prosecution's case. 65.The appellant pointed to the complainant mentioning two locations ,the kitchen and the main house. This is not a contradiction but a continuous narrative of the appellant's conduct. The complainant described how the appellant first assaulted her in the kitchen and then took her to the main house. This demonstrates the appellant's persistence and not a contradiction in the prosecution's case. 66.The appellant also pointed to the mention of a knife in PW3's testimony, which was not mentioned by the complainant during her voire dire examination. This is a minor discrepancy that does not affect the core of the prosecution's case. The complainant did testify that the appellant threatened to kill her if she spoke, which is consistent with the use of threats to silence her. Whether the threat was made with a knife or verbally is immaterial to the proof of the offence. As held in Kaaman v Republic [2024], contradictions that do not go to the root of the prosecution's case do not render a conviction unsafe. 67.The appellant's complaint about the "inadmissibility" of the photostat copy of the birth certificate and the treatment notes is without merit. The documents were properly identified, authenticated, and admitted during trial without objection. In Karimi v Republic [2016], the court held that age must be proved by original documents where available, but in this case, the birth certificate was properly produced by PW3, who had custody of it as part of the police file. The treatment notes were produced by PW4, the examining doctor, who had personal knowledge of their contents. There was no procedural irregularity in their admission. 68.The appellant's claim that he was disadvantaged as an unrepresented accused is also without merit. The record shows that the trial court conducted the proceedings with due regard to the appellant's rights under Article 50 of the Constitution. He was given ample opportunity to cross-examine the prosecution witnesses and to present his defence. The trial court's duty is to ensure a fair trial, not to act as the accused's advocate. In Republic v John Kimiti Mungai [2022] eKLR, the court held that an unrepresented accused person is entitled to a fair trial, not to legal representation at state expense in all cases, and that the trial court's duty is to explain procedural rights to the accused, which was done in this case. 69.I find that there were no material contradictions, inconsistencies, or irregularities that would undermine the prosecution's case. ISSUE V: Whether the Medical Evidence Linked the Appellant to the Offence 70.The appellant argued that the medical evidence did not link him to the offence because there was no DNA evidence, no forensic link between the blood-stained panty and the scene, and no lacerations or bruises beyond the broken hymen. This argument is misconceived. As held in Mohamed Swaleh Slaim v Republic [2021] eKLR, DNA evidence is not mandatory to prove defilement. The prosecution is required to prove penetration and the identity of the perpetrator, not to provide forensic evidence linking the accused to the scene through DNA. In this case, the complainant positively identified the appellant as the perpetrator. She knew him as her neighbor and pointed him out in court. PW2 also identified him. The identity of the perpetrator was established through recognition, not merely identification. 71.In MW v Republic [2019] eKLR, the High Court held that recognition drastically reduces the possibility of mistaken identity. The complainant knew the appellant as her neighbor, had interacted with him before the incident, and was with him for a significant period during the assault. Her recognition of him as the perpetrator is reliable and credible. The absence of lacerations or bruises does not negate the medical evidence. PW4 was clear that the broken hymen and vaginal tenderness were consistent with defilement. He also stated that there was no other cause for the broken hymen. The appellant's speculative theory that the mother inserted an object is unsupported by any evidence and was properly rejected by the trial court. 72.The blood-stained panty (PExh. 5) was produced by PW3 and was consistent with the complainant's testimony that she bled after the assault. While it may not have been forensically linked to the appellant's DNA, it corroborates the complainant's account of bleeding after penetration. In Mukuna v Republic [2025] KEHC 918 (KLR), the court held that medical evidence alone without corroborative linkage to the accused does not sustain a conviction. However, in this case, the medical evidence was corroborated by the complainant's direct testimony identifying the appellant, her mother's testimony, and the investigating officer's testimony. The medical evidence did not stand alone; it formed part of a comprehensive body of evidence linking the appellant to the offence. 73.I find that the medical evidence, combined with the complainant's identification and the surrounding circumstances, sufficiently linked the appellant to the offence. ISSUE VI: Whether the Sentence of Life Imprisonment Was Lawful, Constitutional and Proportionate 76.The appellant challenges the sentence of life imprisonment on several grounds: that it is unconstitutional under Article 50(2)(p) of the Constitution; that it violates his right to dignity under Article 29; that it is disproportionate given his age (57 years); and that the trial court failed to consider mitigating factors. Section 8(2) of the Sexual Offences Act provides that a person who commits an act which causes penetration with a child aged eleven years or less shall be liable upon conviction to imprisonment for life. This is a mandatory minimum sentence prescribed by statute. The trial court had no discretion to impose a lesser sentence. 77.The appellant's reliance on Article 50(2)(p) of the Constitution, which guarantees the benefit of the least severe punishment where appropriate, does not avail him. The phrase "where appropriate" recognizes that there are circumstances where the least severe punishment is not appropriate. The defilement of an 8-year-old child by a 57-year-old is the type of case where the mandatory minimum sentence of life imprisonment is not only appropriate but necessary. 78.The appellant's age (57 years) and his claim that he has exceeded the average life expectancy for Kenyan males are not mitigating factors that warrant a reduction of the mandatory sentence. If anything, his advanced age relative to the complainant's tender age of 8 years is an aggravating factor that underscores the gravity of his offence. 79.The appellant's claim that the trial court failed to apply the Sentencing Policy Guidelines, 2016 is also without merit. The Guidelines require courts to balance aggravating and mitigating factors. However, where a statute prescribes a mandatory minimum sentence, the court's discretion is limited to imposing that sentence or a higher one. The trial court properly imposed the mandatory minimum sentence of life imprisonment, which was lawful and proportionate. 80.The appellant caused untold mental anguish to the complainant, robbing her of her innocence and subjecting her to physical and psychological trauma that will affect her for the rest of her life. The sentence of life imprisonment is commensurate with the gravity of the offence and serves the legitimate penological objectives of deterrence, punishment, and protection of society. In Republic v John Kimiti Mungai [2022] eKLR, the court upheld life imprisonment for defilement of a minor, emphasizing the need for deterrent sentences to protect vulnerable children. 81.I find that the sentence of life imprisonment was lawful, constitutional, and proportionate. Conclusion . 84.For the foregoing reasons, I make the following findings:(a)The prosecution proved all three essential ingredients of defilement—age, penetration, and identification of the perpetrator—beyond reasonable doubt.(b)The prosecution witnesses, including the complainant, were truthful, credible, and reliable.(c)There were no material contradictions, inconsistencies, or irregularities that would undermine the prosecution's case.(d)The medical evidence corroborated the complainant's testimony and linked the appellant to the offence through recognition and the surrounding circumstances.(e)The sentence of life imprisonment was lawful, constitutional, and proportionate to the gravity of the offence. 85.The appellant's appeal is devoid of merit. The conviction was safe, and the sentence was lawful. This Court finds no basis to interfere with the trial court's decision. 86.The Appeal is dismissed. 87.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 5TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angong’a/VelmaAppellant present online.Mr. Ndege for ODPP present online