RI v Republic (Criminal Appeal E024 of 2024) [2026] KECA 1669 (KLR) (24 July 2026) (Judgment)

RI v Republic (Criminal Appeal E024 of 2024) [2026] KECA 1669 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1669 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E024 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between RI Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Mombasa (A. Ong’injo, J.) delivered on 24th November 2022 in Appeal No. E003 of 2022) Judgment 1.This is a second appeal from the judgment of the High Court of Kenya at Mombasa (A. Ong’injo, J.) delivered on 24th November 2022 in Criminal Appeal No. E003 of 2022 in which the learned Judge upheld the trial court’s judgment on conviction in Criminal Case No. 183 of 2017, but substituted the life sentence meted on him for 25 years imprisonment. The appellant had been charged and convicted for the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. 2.The particulars of the offence as charged before the trial court were that, on 19th January 2017 at [Particulars withheld ]Area in [Particulars withheld ] District within Mombasa County, the appellant, RI, intentionally and unlawfully caused his penis to penetrate the vagina of the complainant, a girl aged 11. 3.The appellant was also charged with the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the alternative charge were that, on the said day and place, the appellant intentionally and unlawfully caused his penis to touch the vagina of the complainant. 4.At the trial, the prosecution called 5 witnesses. The complainant, RJ (PW1), gave a sworn statement after a voire dire examination and testified that she was a class five student at [Particulars withheld] Primary School; that the appellant was married to her aunty, Binti HHM (PW2); that, on the material day, PW2 was ill and left to stay with her mother; that PW1 was left behind with the appellant; that, when PW1 got back from school, the appellant requested her to take a shower; that the appellant then requested her to go to his room, but she refused; that the appellant went to her bedroom and undressed her, removed his penis and painfully inserted it into her vagina; and that, on the following night, the appellant repeated the same act on her and inserted his fingers into her anus. 5.PW1 further testified that, after the ordeal, she opted to spend the next night at her grandmother’s house; that she consequently began walking with difficulty as a result of which PW2 inquired of her wellbeing; that she was afraid of disclosing to PW2 what the appellant had done to her, but eventually opened up to another aunt, MHM (PW3); and that PW2 and PW3 took her to hospital for medical attention. 6.PW2 told the trial court that PW1 was her niece, and that the appellant was her husband; that she was unwell on the material day and requested the appellant to look after PW1; that on return, she noticed that PW1 was walking with difficulty; that she confronted her and sought to know what had happened, but that PW1 was unresponsive; that PW1 eventually opened up to PW3 about her ordeal; and that she reported the matter at Inuka Police Station whereupon the appellant was arrested. PW2 stated that she did not hold any grudge against the appellant. In conclusion, she produced into evidence a copy of PW1’s Certificate of Birth, which indicated her date of birth as 1st April 2005. 7.PW3 testified that the appellant was her brother-in-law; that, on 1st February 2017, she summoned PW1 upon request from PW2; that PW1 narrated what the appellant had done to her; and that she immediately reported back to PW2 leading to the appellant’s arrest. 8.PW4, Dr. Uba Hanmed, attached to Coast General Hospital, appeared in court and produced PW1’s Post Rape Care Form (PRC) and P3 Form prepared by his colleague, one Dr. Rabei. PW4 stated that PW1 was examined in February 2017 alleging defilement; and that, upon examination, she was found to have a broken hymen with an old scar, normal outer genitalia, no physical external injuries and tested negative for syphilis, HIV and Hepatitis B, but had a urinary track infection (UTI) infection. PW4 testified that his colleague formed the opinion that there was evidence of penetration, and that PW1 was repeatedly defiled. In conclusion, PW4 produced PW1’s PRC Form prepared on 2nd February 2017 and her P3 Form prepared on 30th March 2017 into evidence. 9.The investigating officer, Bhakita Valema (PW5) attached to Inuka Police Station confirmed the sequence of events as narrated by PW2 and PW3 regarding the appellant’s arrest. The officer told the trial court that a report of PW1’s ordeal was made on 2nd February 2017; that she recorded PW1’s statement; that she visited the alleged crime scene; that PW1 had already been referred to Coast General Hospital; and that the appellant was arrested on 2nd April 2017 and later charged in court. 10.In his defence, the appellant called one witness and gave a sworn statement denying the charges. He confirmed that he resided with PW1, and that his wife (PW2) was away on the material day and only came back two days later; that the case against him was fabricated; that PW1 was not his relative; that he had a domestic dispute with PW2, which was eventually settled; that PW3 bore a grudge against him on account of his relationship with PW2 since he was unemployed; and that he was arrested at his house at midnight. 11.DW2, MH , the appellant’s step brother, told the court that the appellant and PW2 had a domestic “quarrel”; and that the issue was settled, and they resumed cohabitation. 12.In its judgment, the trial court (R. M. Amwayi, SRM) found that the appellant was at the “scene on the alleged date and time; that PW1 was “defiled as per the evidence of the doctor”; and that the prosecution had proved its case against the appellant to the required standards. The court convicted the appellant and sentenced him to life imprisonment. 13.Aggrieved, the appellant moved to the High Court on appeal on the grounds that the trial magistrate erred in law and fact by: finding that the prosecution had proved its case against him; in relying on PW2’s testimony despite the exception set out in section 127 of the Evidence Act; failing to have the matter start de novo; disregarding his defence; and imposing a sentence that was manifestly excessive and harsh. 14.In its judgment, the High Court (A. Ong’injo, J.) found that the ingredients of the offence of defilement had been proved; that no consent was required for a spouse to be a compellable witness where a person is charged with offences under the Sexual Offences Act; that the trial magistrate who took over the matter correctly exercised her discretion to disallow the appellant the opportunity to start the trial de novo in the interest of PW1; that the appellant did not identify any prejudice suffered as a result of that denial; and that the trial magistrate exhaustively considered and evaluated the appellant’s defence. However, the High Court substituted the life sentence for 25 years’ imprisonment. 15.Still aggrieved, the appellant filed the instant appeal on the grounds that the learned Judge erred in law by failing to consider: that the voire dire examination was unlawfully conducted; that the age of the complainant was not established; that the complainant was not trustworthy and her testimony could not sustain a proper conviction; that the prosecution’s case was riddled with contradictions; and the court failed to consider the appellant’s defence. 16.In support of the appeal, the appellant filed undated written submissions citing John Muiruri v Republic (1983) KLR 445 where the purpose of conducting a proper voire dire examination was explained; Kaingu Elias Kasomo v Republic, Criminal Case No. 504 of 2010 (unreported); and Chiroto Nyamawi Mumba v Republic,Criminal Appeal No. 373 of 2010 (unreported), submitting that PW1’s age was not credibly proven by the production of a copy of her Certificate of Birth issued in Tanzania; and Augustine Njoroge Ritho alias Chabah & Another v Republic, Criminal Appeal No. 99 of 1986 (unreported); and Joseph Ndungu Kimanyi v Republic [1979] KECA 5 (KLR), submitting that the prosecution’s evidence was contradictory and “unreliable”, and that PW1 was not a truthful witness. He urged us to quash his conviction and set aside the sentence. 17.In his response, Prosecution Counsel, Mr. Omariba Gichana, filed written submissions and a list of authorities dated 3rd October 2025. Counsel cited George Opondo Okoth v Republic [2019] KEHC 3854 (KLR), submitting on the main ingredients required to prove the offence of defilement; James Mwangi Muriithi v Republic [2015] KECA 81 (KLR), submitting that the appellant’s “line of defence” was an afterthought; Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR), submitting that the appellant did not object to the testimony of PW4 and that, therefore, this court cannot interfere with the concurrent findings of fact by the two courts below; and Obaga v Republic [2023] KECA 1453 (KLR); and Republic v Ayako [2025] KESC 20 (KLR), submitting that the sentence imposed by the High Court was illegal in the circumstances and prayed that it be substituted for life imprisonment. 18.Our mandate on a second appeal, as is the one before us, is confined to consideration of matters of law by dint of section 361 of the Criminal Procedure Code. In Karingo vs. Republic [1982] KLR 213, the Court stated:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.” 19.We have carefully examined the record of appeal, the grounds on which it is anchored, the submissions, the cited authorities and the law, and come to the ineluctable conclusion that the appellant’s appeal is grounded on completely new points of law advanced for the first time on 2nd appeal to this Court, save for the ground that his defence was not considered, and to which we will shortly return. 20.This Court in Alfayo Gombe Okello v Republic [2010] eKLR underscored the importance of raising all issues in contention at the earliest opportunity at the trial and had this to say on the issue:“… the issue was not raised since the trial began and was only raised for the first time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore find, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 21.This Court in Sudi Mnalo Mweke v Republic [2023] KECA 1527 (KLR) identified itself with the holding by the predecessor to this Court in Alwi Abdulrehman Saggaf vs. Abed Ali Algeredi [1961] EA 767 where, in its holding, the Court laid down the guiding principle that the course of taking on appeal a point of law which has not been argued in the court below ought not to be followed unless the court is satisfied that the evidence upon which they are asked to decide established beyond doubt that the facts, if fully investigated, would have supported the new plea. The justification for that holding was that:“The appellate jurisdiction is conducted in relation to certain well-known principles and by familiar methods. The issues of fact and law are orally presented by counsel. In the course of the argument it is the invariable practice of the appellate tribunals to require that the judgements of the judges in the courts below shall be read. The efficiency and authority of a Court of Appeal, and especially a final Court of Appeal, are increased and strengthened by the opinions of the learned Judges who have considered these matters below. To acquiesce in such attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest importance without having received any assistance at all from the judges in the courts below.It (has) been clear for nearly a century and perhaps more, that the litigant could not take a completely new point of law for the first time on appeal and the Court of Appeal had no jurisdiction to decide a point which had not been subject of argument and decision in the county court.” 22.Turning to the sole surviving ground of appeal, we take note that the appellant’s submissions are silent on why he believes that his defence was not considered by the trial court. The appellant chose to argue this ground together with grounds three and four, on the alleged “mass contradictions, inconsistences, lies and discrepancies” in the prosecution’s case. 23.However, we appreciate that the appellant’s defence at the trial centered on the alleged domestic dispute between himself and PW2, which also caused friction between him and PW3 and which, according to the appellant, resulted in the “fabricated” case of defilement against him. DW2 only confirmed to the trial court that a domestic dispute did occur between the appellant and PW2, but that according to him, the same had been resolved. 24.In rebuttal, learned counsel for the respondent submitted that “there was no longer animosity between the two parties, and PW2 had left the victim [PW1] in the care of the appellant to seek medical attention. There was no connection between the matrimonial dispute and the offence… It was during recall of PW2 that the appellant raised the issue that he had a domestic dispute with PW2 … … this line of defence by the appellant.” 25.At page six (6) of the trial court’s judgment, the learned magistrate, while considering the appellant’s defence stated that:“The accused person alluded to there being a matrimonial disagreement between him and his wife. However, he admitted that the issue was amicably resolved and that they continued with their marriage. This was confirmed by DW2. Furthermore, he did not testify as to how the dispute would have contributed to the charges he is facing. Having resolved their differences, I don’t think that the same have any connection to the charges before court.” 26.Consequently, the High Court held that:“ 47.…. This Court finds the appellant’s defence was exhaustively evaluated and considered.” 27.We agree with the learned Judge’s finding that the respondent’s defence was exhaustively evaluated and considered in the trial court’s judgment. In any event, the defence raised was undoubtedly an afterthought and counts for little. Having declined to entertain the other grounds raised for the first time on 2nd appeal before us, we reach the inescapable conclusion that the appeal fails and is hereby dismissed in its entirety. 28.Consequently, the judgment of the High Court of Kenya at Mombasa (A. Ong’injo, J.) delivered on 24th November 2022 is hereby upheld. Orders accordingly. 29.Having so found, we consider it appropriate to express, with utmost respect, our concern regarding the emerging trend of markedly reduced sentences in cases involving sexual offences against children of tender years, notwithstanding the applicable statutory framework prescribing minimum and, in some instances, mandatory penalties. We also observe that, in comparable matters, the absence of a notice of enhancement at the stage of second appeal has, on occasion, limited the Court’s ability to fully interrogate the propriety of sentence, thereby potentially undermining the broader objectives of justice. This is particularly significant given the profound and lasting impact such offences have on young victims, who may, in time, encounter offenders within their communities following comparatively short custodial terms. In appropriate cases, the timely lodging of cross-appeals or notices seeking enhancement of sentence would assist the Court in addressing such concerns within the bounds of the law. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY 2026.A. K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.……………………………………JUDGE OF APPEALG. W. NGENYE-MACHARIA………………………………...JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR