https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9548

Ntwiga v Republic (Criminal Appeal E113 of 2025) [2026] KEHC 9548 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 9548 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E113 of 2025 NIO Adagi, J June 11, 2026 Between Elijah Munene Ntwiga Appellant and Republic Respondent (Being an appeal from the conviction and judgment in Criminal Case S.O No. E023 of 2022 at Chief Magistrate 's Court at Machakos delivered on 30/09/2025) Judgment 1The Appellant Elijah Munene Ntwiga 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 particulars are that on the 30th April 2022 at around 0500 hours at [Particulars Withheld] police post, [Particulars Withheld] Sub-location, Mitaboni location in Kathiani sub-county within Machakos County, intentionally and unlawfully caused his penis to penetrate the vagina of A.N.M. (name withheld) a child aged 15 years contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. 2In the alternative he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars are that on the 30th April 2022 at around 0500 hours at [Particulars Withheld] police post, [Particulars Withheld] Sub-location, Mitaboni location in Kathiani Sub-county within Machakos County, intentionally and unlawfully touched the vagina of A.N.M (name withheld) a child aged 15 years with his penis contrary to Section 11 (1) of the Sexual Offences act. 3The Appellant pleaded not guilty to the main charge and the alternative charge and the matter was set down for hearing. The prosecution called six (6) witnesses in proving its case. 4The Appellant gave sworn defence evidence and did not call any witness. 5The trial court upon considering the evidence adduced, it convicted the appellant of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to 20 (twenty) years imprisonment on 03/02/2025.1.Being dissatisfied with the decision of the trial court, the Appellant has lodged the instant appeal against both the conviction and sentence. The Appellant’s Petition of Appeal dated 27th October 2025 which raises eight grounds of appeal as follows:-a.That the learned Trial Magistrate erred in law and fact by convicting the Appellant without proper and sufficient evidence linking him to the alleged offence.b.That the learned Trial Magistrate erred in law and facts when she relied on uncorroborated, inconsistent and contradictory evidence tendered by the prosecution witnesses which was not supportive of the charge and the same was not proved beyond reasonable doubt as regard by the standard of law.c.That the learned Trial Magistrate erred in law and facts when she did not evaluate and consider the nexus of the case leaving doubts of how the accused person found himself charged before this Honourable Court.d.That the learned Trial failed to consider the defence of the Appellant which raised reasonable doubt as to his guilt.e.That the learned Trial Magistrate erred in law and fact by failing to give due consideration to the requirement of positive identification of the Appellant as the assailant and proof of penetration by the Appellant as the assailant as well.f.That the sentence imposed upon the Appellant was harsh and excessive in the circumstances, and the learned Trial Magistrate failed to consider the mitigating factors.g.That the conviction and sentence were against the weight of evidence and the law. 6The appeal was canvassed through written submissions. The Appellant’s submissions are dated 3rd March 2026. The Respondent’s submissions are dated 6th March 2026. 7The Appellant urges this court to find that the prosecution failed to prove the charge against the Appellant to the required threshold to warrant conviction of the Appellant and to acquit the Appellant under Section 215 of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya. The Appellant submits that the prosecution failed to prove all essential ingredients of the offence of defilement beyond reasonable doubt.The conviction was therefore unsafe. 8On the other hand, the Respondent opposes the instant appeal and submits that the trial court properly evaluated the evidence and came to the right conclusion. That trial court was well within its jurisdiction and discretion to sentence the Appellant as it did. The sentence was within the law and thus legal. The Respondent urges this Court not to interfere with the sentence. The Respondent submits that the appeal lacks merit and ought to be dismissed in its entirety Analysis and Determination 9This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno -vs- Republic (1972) EA 32 where it was stated as follows: -“An appellant 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 the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 10Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 11In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 12In the case of Mwangi vs Republic [2004] eKLR 28. It was held as follows:“Any 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 have the appellate courts own decision on the evidence” 13Having subjected the evidence to fresh and exhaustive examination, considered the trial court’s judgement, the grounds of appeal and the submissions of the parties, I find the following as issues for determination;a.Whether the prosecution proved its case beyond reasonable doubtb.Whether the sentence should be reviewed a. Whether the prosecution proved its case beyond reasonable doubt 14It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller.vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.” 15In this case, the Appellant was charged and sentenced for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. 16The offence of defilement is provided for under Section 8 of the Sexual Offences Act. Section 8(1) provides that:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. 17To sustain a conviction for the offense of defilement, the prosecution has to prove three ingredients beyond reasonable doubt. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. The Court in that case stated:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant”. 18Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt. Did the prosecution discharge this task?According to the Appellant the prosecution failed in this undertaking, whereas the Respondent is of a different view. i. Age of victim 19The offence herein is alleged to have happened on 30/4/2022. PW1, the complainant/victim testified in court on 06/4/2023 and stated that she was aged 15 years old having been born on 30/7/2008. A birth certificate was produced as PExt.1 which showed the complainant PW1 was born on 30/7/2008. PW2, the Clinical Officer stated that the estimated age of the person she examined was 14 years. PW3 stated that the complainant was about 16 years old. PW4, the complainant’s mother stated that the complainant was born on 30/7/2008 as per her Birth certificate (PExt.1). PW1, the complainant was re-called to testify in court on 06/11/2023 seven months from when she had first testified and she told court she was then 16 years old. PW6, the Investigating Officer testified that he obtained the complainant’s identification of birth (PExt.1) and established that she was born on 30/7/2008 and when the incident happened, she was 14 years and about to reach 15 years. 20The Court of Appeal in Mwalango Chichoro Mwanjembe v Republic' (2016) eKLR held that:“The question of proof of age has finally been settled by recent decisions of this Court the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” 21In this case the birth certificate (PExt.1) shows that the complaint was born on 30//7/2008 and the incident allegedly happened on 30/4/2022, properly calculated, the complainant was 13 years and 8 months when the accident happened. Her age was not 15 years as stated in the Charge Sheet and stated by the prosecution witnesses. This notwithstanding, I find that the prosecution was able to prove the complainant was a child below 18 years although her age was 13 years and 8 months and not 15 years as stated in the Charge Sheet. 22In Basil Okaroni versus Republic [2016] eKLR the Court had this to say:‘We agree with the appellant that in Sexual Offences, ascertainment of the victim’s age is crucial and the court’s have underscored the necessity of this requirement. 23In Criminal Appeal No. 504 of 2010 Kaingu Alias Kasomo vs. Republic [1982] KLR 213, the Court of Appeal stated thus:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim” 24The ingredient of age of the victim being below 18 years was thus proved as required and the same is not contested by the Appellant. ii. penetration 25On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows:“The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 261 have considered the evidence tendered by the Prosecution witnesses as regards penetration in this case. The relevant evidence that touches on the alleged defilement is that of PW1, the complainant/victim and that of PW2, the Clinical Officer. 27The complainant/victim PW1 testified that on the fateful night, she went for a kesha when the Appellant sent an usher to tell her that her mother told her to go to [Particulars Withheld] police post. She went with Kavindu to the Police post together with the Appellant when the Appellant said he would stay with her at the police post. The Appellant then locked her in his house where she stayed for 15 minutes and then the Appellant came back. She stated that the Appellant came back with liquor and poured in a glass for her and for himself. The Appellant asked her to drink and when she drunk, the Appellant slept on her. The Appellant then asked her saying "nimuangushie " which PW1 understood to mean she sleeps with her. She declined and said that she was a child and did not want. Finally, the Appellant removed the trouser she was wearing. She also had a pull neck and a bra. The Appellant removed her trouser and panties. She was in bed arguing with him and pushing him not to remove her clothes. The Appellant removed his trouser and shorts and took a CD and put on his penis and he mentioned them by name and put on her vagina. He inserted inside. PW1 was lying in bed and the Appellant was lying there. After he finished, PW1 did not talk to him and he did not talk to her. They just lay there. PW1 stated that she left at around 10.00am and found the Appellant’s Senior washing clothes outside but did not speak to him. She went home and slept. Her mother asked her where she was but she hid it from her, she told her mother at around 7.00pm when she felt pain. They went back to the police post then to Kathiani. She did not see the documents from the hospital; they were given to her mother. 28PW2, a Clinical Officer from Kathiani Level 4 hospital testified that she was familiar with the P3 Form she personally filled, signed and it was stamped which was issued to PW1. She also completed the Post Rape Care Form (PRC). The P3 Form and the PRC Form were produced as PExt.2 and PExt.3 respectively. PW2 testified that she filled the P3 Form on 02/05/2022. She assessed the patient’s (PW1) clothing had no tears, no bad odour or stains or blood or smell. The clothes were a black panty and it was intact. The patient agreed to have been defiled by a police officer on 30/4/2022 at [Particulars Withheld] police post where she was locked in a room and ordered not to shout. PW2 assessed PW1 who was stable and in fair general condition. She conducted a vaginal examination. The Hymen was broken, no discharge was noted from the vagina, no blood stain, no foul odour or smell. Libia majora was intact and no lacerations noted in the vagina, outer genitalia or libia minora. The patient was not under influence of alcohol. 29PW2 testified that she went ahead and did a general examination of the patient. The head and neck were normal. Nothing was abnormal. The thorax and abdomen, no abnormality seen. All findings were normal. Upper and lower limbs were normal. The approximate age of the injuries when filling the P3 Form was 24 hours from the alleged time of the incident. PW1 had reported the incident on 30/4/2022 towards dawn. The probable type of weapon causing injury was blunt. PW1 was reporting to have been defiled so the blunt weapon therefore would have been the penis. She attributed the injury to the absence of the hymen. Lab tests were done and were found negative for HIV and syphilis. Full hemogram showed normal results. She proposed they did a pregnancy test but forgot to indicate results. The history of the girl (PW1) caused her to consider that defilement had been committed. There was no other supporting finding from physical and lab exam other than the missing hymen. 30On cross examination PW2 stated that what she found positive was the hymen broken. But this could have been done a long time ago. When the hymen is freshly broken, they see some bruises or blood. PW1’s hymen was not freshly broken; she indicated that the probable weapon causing the injury as blunt due to the missing hymen. In her expertise, there is no other way a hymen can be broken other than through sexual intercourse. She believed PW1 broke her hymen through sexual intercourse. She could not tell whether the Appellant broke the complainant’s hymen. PW2 confirmed that as she testified, she did not know the state of PW1 and by then if PW1 became pregnant she would have given birth. She was not aware if PW1 gave birth. She also confirmed that the Appellant was brought to her alongside PW1 and she examined him but she did not have the report of the Appellant’s examination. She could not tell if the Appellant defiled the victim or not. She confirmed the approximate age of the injuries was 24 hours. 31I have re-evaluated and re-analysed the evidence of PW1 and PW2. Whereas PW1 testified that finally, the Appellant removed the trouser she was wearing and that she also had a pull neck and a bra. The Appellant removed her trouser and panties, she at the same time states that she was in bed arguing with him and pushing him not to remove her clothes. Which is which?. 32PW2 testified that the history of the girl (PW1) caused her to consider that defilement had been committed. On her examination of PW1, the approximate age of the injuries when filling the P3 Form was 24 hours from the alleged time of the incident. On cross examination PW2 stated that what she found positive was the broken hymen. But this could have been done a long time ago. When the hymen is freshly broken, they see some bruises or blood. PW1’s hymen was therefore not freshly broken. There was no other supporting finding from physical and lab exam other than the missing hymen. 33PW2 further testified that in her expertise, there is no other way a hymen can be broken other than through sexual intercourse. She believed PW1 broke her hymen through sexual intercourse although she could not tell whether or not the Appellant broke the complainant’s hymen. 34I don’t agree with PW2’s purported expertise that there is no other way a hymen can be broken other than through sexual intercourse and to disregard the same I refer to the decision in David Mwingirwa vs. Republic [2017] eKLR the Court of Appeal considered High Court's decision to uphold the trial court's conviction for incest on the basis that the complainant's hymen had been broken and held that:“From that reasoning of the learned judge, it would seem that the certainty or confidence with which she asserted that there was overwhelming evidence of LK having engaged in sexual activity came in no small measure from what she considers the corroboration afforded by the evidence of PW4 on the broken hymen. According to the learned judge, PW4 was of the view that "there was continuous process of defilement. " With respect, we do not think that this was entirely correct. The Clinical Officer PW4 noticed that nor was there spermatozoa or any male emission in her vaginal carnal. He merely stated that the broken hymen was suggestive of an ongoing process of defilement. He did not suggest that his said conclusion was based on any other observation beyond the broken hymen. Then this brings to the fore the issue raised by the appellant whether, in the absence of any other medical or physical evidence, a broken hymen is conclusive proof of penetrative sexual intercourse as PW4 seemed to suggest (his remarks in the P3 and his testimony in Court do not go beyond a suggestion) and as the learned judge seemed to have concluded, we think it was an error for the learned judge to form a firm conclusion of defilement from the fact alone of the broken hymen. " 35PW1 stated that she left at around 10.00am and found the Appellant’s Senior washing clothes outside but did not speak to him. She went home and slept. Her mother asked her where she was but she hid it from her, she told her mother at around 7.00pm when she felt pain. This court does not find the victim to be truthful; in her scenario she would have been expected to immediately report the incident to the Appellant’s Senior who was washing clothes out side since it appears PW1 knew he was the Appellant’s senior. 36PW3 testified that she asked PW1 what her problem was and she said that her problem was that her grandmother where her mother was previously married had bewitched her and that was why she kept sleeping out all the time. This can only be construed to establish that PW1 had been sleeping out with other men. 37The trial court’s record shows that the complainant (PW1) on 06/11/23 was recalled to be cross examined by the defence. This was almost seven months from when she had first testified. She told court that she was currently nursing her child who was then four (4) months old. She stated that she knew the father of the child who is not the Appellant. By then she stated that she was 16 years old and still a child under the Kenyan law. She admitted that she had no case against the father of the child and had never reported him and neither did she know whether her mother had reported. 38PW3, the complainant’s mother confirmed that the complainant/victim had delivered the child in July and that she knew the person for her pregnancy. The father of the child is not the Appellant. The one who is responsible is a student at Ngolani High School. They reported to the village elder and the Assistant Chief who said the complainant/victim should deliver first. 39This court is of the view that if it is true that the complaint delivered her child in July 2023 after testifying in court in April 2023, then without doubt, she was about 4-5 months pregnant when she was testifying, and as admitted by the victim and her mother that the Appellant was not the father of the complainant’s child. Nothing can be far from the truth that the defiler in this case is the purported student at Ngolani High School who is well known to PW1 and PW3 yet he enjoys freedom as the Appellant rots in prison. 40PW2 testified that the patient was not under influence of alcohol whereas PW1 testified that the Appellant forced her to take alcohol. This court is of the view that had it been true that indeed the Appellant forced PW1 to take alcohol, then the same would have been detected in the full hemogram test. 41The fact that the complainant/victim had been sleeping out alleging to have been bewitched by her grand mother, that the complaint delivered her child in July 2023 after testifying in court in April 2023 seven months after without disclosing she was pregnant and the fact that no alcohol was detected in the complainant’s blood following the full hemogram test can only depict the conduct of the complainant as untrustworthy person . Thus, the Appellant herein was only a sacrificial lamb. 42Section 124 of the Evidence Act provides that:“Notwithstanding the provisions of section 19 of the Oaths und Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated hy other material evidence in support thereof implicating him:Provided that in a criminal ease involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 43I have perused the trial court’s judgment, and I have not come across where the trial magistrate recorded reasons that she was satisfied the victim herein was telling the truth. 44On the foregoing evidence, PW2 who was to corroborate the evidence of PW1, having testified that even after examining the victim 24hours after the alleged incident and finding the old broken hymen and that same could have been broken long time age, the trial court ought to have given the Appellant the benefit of doubt and acquitted him. This court therefore finds that the prosecution did not prove to the required standard that the Appellant penetrated and defiled the victim herein. The evidence on penetration was not corroborated and unsafe for the trial court to have relied upon to conclude that there was penetration and proof of defilement by the Appellant as charged. iii. Positive identification of the assailant 45The ingredient of penetration above having not been proved, then automatically, proof of positive identification of the Appellant as the assailant equally failed. I will not belabour to determine the same. 46Before I pen off, I wish to point out that this court has observed that the prosecution did not say anything or explain what happened to the other person with whom the complainant/victim upon being recalled admitted that he was the father of her child. The victim’s mother also confirmed that the complainant/victim had delivered the child in July and that she knew the person for her pregnancy, the father of the child is not the Appellant and the one who is responsible is a student at Ngolani High School. It appears no action has been taken even after they reported to the village elder and the Assistant Chief who said the complainant/victim should deliver first. 47Consequently, this court finds that the evidence on the trial court’s record failed to meet the required standard of proof in criminal cases. The essential ingredients of defilement were not proved beyond reasonable doubt. b. Whether the sentence should be reviewed 48The Appellant was sentenced to serve 20 years imprisonment. The Appellant in mitigation prayed for leniency, a chance to help the community because of his skills, that he was a young man and still desired to have a family. The prosecution informed the court that the Appellant was a first offender and had no previous records. 49.Section 8(1) are read with Section 8(3) of the Sexual Offences Act provides that:(l)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(4)A person who commits an offence of defilement with a child between the twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 49.The minor was 14years and 8 months of age. The law provides that upon conviction; the imprisonment should be for a term not less than 20 years.50.In Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023, the Supreme Court of Kenya held that the minimum sentences in the Sexual Offences Act were constitutional and the courts are bound by the minimum mandatory sentences as provided for by law. Looking at the circumstances of this case, the sentence was legal and proper as prescribed by law.51.Had I upheld the Appeal, I would have affirmed the Sentence as was imposed by the trial court.52.The upshot is that this appeal succeeds. The conviction is quashed. The sentence of twenty years is set aside. The Appellant is forthwith unconditionally set at liberty unless otherwise lawfully held.Orders accordingly. The file is closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 11TH JUNE 2026NOEL ADAGIJUDGEDELIVERED AT MACHAKOS VIA TEAMS THIS 11TH DAY OF JUNE 2026In the presence of :Ms. Muthanje h/b for Mr. Makori for AppelMs. Agatha Abang for StateMilly Grace -Court Assistant