Kai v Republic (Criminal Appeal E023 of 2024) [2026] KECA 1344 (KLR) (10 July 2026) (Judgment)

Kai v Republic (Criminal Appeal E023 of 2024) [2026] KECA 1344 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1344 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E023 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Ramadhan Kahindi Kai Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 19th March 2024 in Criminal Appeal No. E010 of 2022 Criminal Appeal E010 of 2022 ) Judgment 1.The Appellant, Ramadhan Kahindi Kai, was charged before the Senior Resident Magistrate’s Court at Garsen with the offence of defilement contrary to Section 8(3) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that, on diverse dates between 20th November and 30th November 2020 at [Particulars Withheld] village in long Tana Delta sub-County within Tana River County, he intentionally caused his penis to penetrate the vagina of HHG, PW1, the complainant, a child aged 13 years. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same date, time, and place, he intentionally touched the vagina of the complainant with his penis. 2.The prosecution called five witnesses in support of its case, while the Appellant testified in his defence as the sole witness. He was convicted, and sentenced to twenty years’ imprisonment on the main charge by the trial court, whereafter, his first appeal to the High Court was dismissed, hence the present appeal. 3.The prosecution case was that, on 30th November 2020, PW1, HHG, a 14- year-old girl, (when she testified), and a pupil at [Particulars Withheld] Primary School, had been sent by her aunt to fetch water from a well approximately thirty metres away. While there, she met the Appellant, who was well known to her. Without provocation, the Appellant grabbed her by the hand, pulled her aside, removed her panties while threatening her, and had sexual intercourse with her. He warned her not to disclose the incident to anyone. Out of fear, she kept quiet. In January 2021, she realized that she had missed her menstrual period and later informed her aunt, who took her to Garsen Health Centre where a pregnancy test confirmed that she was pregnant. 4.PW2, the mother of PW1, corroborated PW1’s testimony. She confirmed learning of the incident, and how a medical examination later revealed that PW1 was pregnant. LB, PW4, a resident of [Particulars Withheld] village and a small- scale trader who lived with PW1, was informed by PW1 that she had missed her December menstrual period. PW4 contacted a private medical practitioner who confirmed the pregnancy and advised that PW1 seek confirmation at Garsen Health Centre. Upon inquiry as to who was responsible, PW1 described a person with dreadlocks who walked with a limp, whom she identified as the Appellant. 5.Shevo Buyo, PW3, a Clinical Officer at Garsen Health Centre, examined PW1 and found no fresh genital lacerations, but observed that the hymen was broken. He referred PW1 to the laboratory where a pregnancy test was conducted and returned a positive result. The pregnancy was estimated to be eight weeks. Other tests conducted were negative. PW3 produced the treatment notes as an exhibit. 6.On 9th February 2021, Ellon Leseiyo Kusoi, PW5, the investigating officer, received a report from PW1’s father that his daughter had been defiled. He issued a P3 form and referred PW1 to Garsen Health Centre. He further testified that the Appellant was apprehended by members of the public while boarding a motorcycle with his belongings, allegedly attempting to flee. He confirmed that PW1 was born on 2nd March 2007, and that he had prior knowledge of the Appellant who walked with a limp which description matched the one given by PW1. 7.In his defence, the Appellant denied the charges and stated that, on 20th November 2020, he was in [Particulars Withheld]; that on 21st November 2020, he received news that his father had suffered a stroke and travelled home; and that he returned on 30th November 2020. He further stated that he later sought permission to travel again due to his parents’ illness and was arrested at Minjila. He denied knowing PW1 or being aware that she was pregnant. 8.Upon evaluation of the entire evidence on record, the trial court found that the prosecution had proved its case against the Appellant beyond reasonable doubt; that the complainant positively identified the Appellant as the perpetrator; that she was 13 years old at the time the offence was committed in November 2020; and that penetration was proved and, consequently, the court sentenced him to 20 years’ imprisonment to run from 10th February, 2021. 9.Aggrieved, the Appellant filed an appeal to the High Court, which upheld both the conviction and the sentence of 20 years’ imprisonment, and dismissed the appeal in its entirety. 10.Aggrieved, the Appellant filed an appeal to this Court on grounds: that the learned Judge fell into error in upholding the conviction; in failing to consider that the charge sheet was incurably defective, contrary to Sections 134 and 137 of the Criminal Procedure Code; in failing to consider that a voire dire examination was not properly conducted on the minor (PW1), contrary to Section 19(1) of the Oaths and Statutory Declarations Act, thereby rendering the trial a nullity; in failing to consider that no forensic evidence, including DNA analysis, was conducted to prove the alleged pregnancy, contrary to Sections 36 and 34(1) of the Sexual Offences Act; and in failing to consider the Appellant’s defence and alibi, contrary to Section 212 of the Criminal Procedure Code. 11.The parties filed written submissions. When the appeal came up for hearing on a virtual platform, the Appellant appeared in person, while learned prosecution counsel Mr. Kariuki appeared for the Respondent. In his submissions, the Appellant reiterated the contentions in the grounds of appeal, save to add that the prosecution failed to conduct forensic investigations, particularly with respect to DNA testing to establish that he was responsible for the pregnancy, contrary to Sections 36 and 34(1) of the Sexual Offences Act. He further submitted that inconsistencies between the alleged date of the offence and the medical assessment of the pregnancy created reasonable doubt, which was not resolved by the courts below. Lastly, the Appellant submitted that his defence, including his alibi, was not adequately considered as required by law, thereby violating his right to a fair trial. 12.On their part, learned prosecution counsel submitted that the prosecution proved all the essential ingredients of the offence beyond reasonable doubt, namely the age of the victim, penetration, and identification of the Appellant. 13.On the age of PW1, counsel submitted that this was conclusively established through the production of a birth certificate, which showed that the victim was 13 years old as at the time of the offence; and that proof of age may be by documentary evidence, medical evidence, or oral testimony. Reliance was placed on the case of Mwalango Chichoro Mwanjembe vs Republic (Criminal Appeal No. 24 of 2015), where this Court held that age can be proved through various credible means, including documents and testimony. 14.On identification, counsel submitted that the Appellant was positively identified through recognition; that PW1 knew the Appellant prior to the incident and described him, including his physical features such as dreadlocks and a limp, which matched his description at the time of arrest. It was argued that this was not a case of mistaken identity, but of recognition; and that, further, the circumstances of recognition were clear and free from error. 15.Regarding penetration, the Respondent submitted that it was proved through both the victim’s testimony and corroborative medical evidence. The victim gave a detailed account of the sexual act, while a medical examination revealed absence of the hymen and confirmed that she was approximately eight weeks pregnant. It was argued that medical evidence merely corroborates the victim’s account and is not indispensable. 16.On the Appellant’s defence of alibi, it was submitted that it was properly rejected by the trial court; and that the prosecution evidence placed the Appellant at the scene of the offence, thereby displacing his alibi. Further, that the alibi was not raised at an early stage and appeared to be an afterthought. 17.This is a second appeal arising from the conviction and sentence of the Appellant for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. 18.With regard to second appeals, Section 361(1) of the Criminal Procedure Code enjoins this Court to consider only questions of law. In the case of Karani vs Republic [2010] 1 KLR 73, the Court stated thus:“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.” 19.We have considered the grounds of appeal, the Record of Appeal, together with the submissions and are of the view that the issues arising for determination are: i) whether the charge sheet was defective; ii) whether failure to conduct a voire dire examination rendered the trial a nullity; iii) whether the absence of DNA evidence was fatal to the prosecution case; iv) whether the Appellant’s defence was properly considered; and v) whether the offence of defilement was proved beyond reasonable doubt. 20.On the first issue, the Appellant contended that the charge sheet was defective for want of specificity as to when the offence occurred, contrary to Sections 134 and 137 of the Criminal Procedure Code.Section 134 of the Criminal Procedure Code provides that a charge sheet must contain sufficient particulars to inform the accused person of the nature of the offence he is facing so as to enable him to prepare his defence. It specifies that:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 21.As to whether an anomaly can render a charge sheet defective was considered in the case of Isaac Omambia vs Republic [1995] eKLR, where the court identified the necessary ingredients in a charge sheet as follows:“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”In determining whether a charge sheet was defective or not, this Court in the case of Sigilani vs Republic [2004] 2 KLR, 480 stated that:“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable the accused to prepare his defence.” 22.In the present case, the charge specified the offence of defilement, the statutory provisions under which it was brought, the place where the offence was allegedly committed, and the period within which it occurred, namely between 20th and 30th November 2020. While the exact date on which the offence occurred was not stated with precision, this did not render the charge sheet defective. Provided the prerequisites of a charge sheet as spelt out by Section 134 of the Criminal Procedure Code were complied with and the Appellant did not demonstrate any confusion as to the charge he faced or any prejudice suffered as a result of the manner in which it was framed, we are satisfied that the charge sheet met the threshold set out by law, with the result that this ground has no merit. 23.On the second issue of whether failure to conduct a voire dire examination rendered the trial a nullity, the Appellant contended that the complainant, being a minor, ought to have been subjected to voire dire examination in accordance with Section 19 (1) of the Oaths and Statutory Declarations Act, and that the failure to do so vitiated the proceedings. 24.The record shows that the complainant was aged 14 years at the time she testified and, in this regard, Section 127(2) of the Evidence Act and the principles laid out in the case of Maripett Loonkomok vs Republic [2016] KECA 520 (KLR) are clear where it was observed that:“. . . That the definition in the Children Act is not of generalapplication; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination.It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that: - “In appropriate cases where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.” 25.In this case, the complainant, aged 14 years, gave coherent and consistent sworn testimony of the events in question, which was properly received by the trial court. Her testimony was subjected to cross-examination and remained unshaken. There is nothing on record to suggest that she lacked the intelligence or capacity to understand the proceedings, or the duty to tell the truth. See Korir vs Republic (Criminal Appeal 53 of 2019) [2025] KECA 1095 (KLR). This ground therefore fails. 26.On the issue of whether his defence, particularly the alibi, was not adequately considered, the record shows that both the trial court and the High Court evaluated and rejected the defence and alibi. Both courts took into account the prosecution evidence that placed the Appellant at the scene, and together with the complainant’s evidence that she recognized him as a person known to her, all pointed to the Appellant as being the perpetrator. In conjunction with the prosecution evidence, the Appellant himself admitted to having been within the locality at the material time, which evidence also placed him at the scene. We consider that both the trial court and the High Court properly evaluated the prosecution evidence against the Appellant’s defence and alibi and, in our view, rightly rejected it. This ground is also without merit. 27.Finally, on whether the offence was proved beyond reasonable doubt, the essential ingredients of defilement are the age of the complainant, proof of penetration, and identification of the perpetrator. See John Mutua Munyoki vs Republic [2017] eKLR. 28.In the instant case, the age of the complainant was proved by a birth certificate that showed she was 13 years old at the time of the offence. With regard to proof of age, this Court in the case of Edwin Nyambogo Onsongo vs Republic [2016] eKLR stated as follows:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, 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. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 29.Given that the complainant’s age was proved by the production of a birth certificate, we need say no more on this issue. 30.On whether penetration was proved, “Penetration” under Section 2 of the Act means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” In the case of F O D vs Republic [2014] eKLR, it was held that, in order to secure a conviction for the offence of defilement under the Sexual Offences Act, the prosecution must establish that the person has committed an act which causes penetration with a child. 31.The complainant in this case gave direct and explicit evidence that the Appellant had sexual intercourse with her. Her testimony was clear, consistent, and remained unshaken even upon cross-examination. Her evidence was further fortified by medical findings which confirmed that her hymen was absent, and that she was approximately eight weeks pregnant. On the basis of this evidence, both the trial court and the High Court reached the conclusion that penetration was proved to the required standard. On our part, given the concurrent findings of fact by the two courts below, we too are satisfied that penetration was proved. 32.This brings us to the issue of whether the prosecution can be faulted for failing to adduce DNA evidence to establish that the Appellant was responsible for the pregnancy so as to prove that there was penetration. 33.In the case of Aml vs Republic [2012] eKLR this Court upheld the view that:“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.”. 34.Further, in the case of Wanyonyi vs Republic (Criminal Appeal 312 of 2018) [2019] KECA 679 (KLR) this Court observed:“Whether the victim of a sexual offence is impregnated or not is irrelevant to the ingredient of the offence of defilement.” 36.The above cited authorities are unequivocal that whether the victim of a sexual offence is impregnated or not is irrelevant to prove penetration in the offence of defilement. So that, whether or not a DNA test was conducted linking him to the complainant’s pregnancy is immaterial to the offence of defilement, with the result that this ground is without merit and is dismissed. 37.Turning to identification, the evidence on record was one of recognition rather than mere identification. 38.This Court observed in the case of Shalen Shakimba Ole Betui & Shadrack Koitimet Ole Betui vs R, CR.A NO. 284 OF 2005:The present was a case of recognition rather than identification and on our part we have considered this issue and are satisfied that in view of the concurrent findings of the two courts below the appellants were positively identified, nay recognized by PW1 and PW2. There could be no possibility of a mistaken identify. We are satisfied that the appellants were convicted on very sound evidence of recognition in circumstances which were conducive to proper identification/recognition, Anjononi and Another v. R, [1980] KLR 54 at p. 60.” 39.The complainant testified that she knew the Appellant prior to the incident and was therefore able to recognize him. She described him as a person with dreadlocks who walked with a limp. The description provided was consistent with that of the Appellant’s distinct appearance at the time of his arrest and as confirmed by other witnesses. The circumstances under which the offence occurred were conducive to a positive and reliable recognition, and no possibility of error or mistaken identity arises from the record. 40.Upon re-evaluation of the record and the concurrent findings of the two courts below, we are satisfied that all the ingredients for the offence of defilement were proved, that the conviction was safe, and the sentence imposed was lawful. 41.Accordingly, the appeal is devoid of merit and is hereby dismissed in its entirety, and we accordingly uphold the conviction and sentence of the High Court of Kenya at Garsen (S.M. Githinji, J.) delivered on 19th March 2024.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.-A. K. MURGORJUDGE OF APPEAL...............................DR. K. I. LAIBUTA CArb, FCIArb.JUDGE OF APPEAL...............................G. W. NGENYE-MACHARIAJUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR