https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8881

Mwanje v Republic (Criminal Appeal E017 of 2025) [2026] KEHC 8881 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8881 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Appeal E017 of 2025 RN Nyakundi, J June 24, 2026 Between Richmond Mwanje Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon P. Karimi (RM) delivered at Vihiga in the Magistrate’s Court in Sexual Offence Case No E029 of 2024 on 26th November 2024) Judgment Introduction 1.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2.The Learned Trial Magistrate, Hon P. Karimi (RM) convicted him of the main charge and sentenced him to fifteen (15) years imprisonment. 3.Being dissatisfied with the said Judgement, on 25th June 2025, he lodged an appeal herein. His Petition of Appeal was dated 19th June 2025. He set out five (5) grounds of appeal. 4.His Written Submissions were dated 26th November 2025 and filed on 5th December 2025 while those of the Respondent were dated 6th February 2026 and filed on 9th February 2026. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety. Legal Analysis 5.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 6.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 7.Having looked at the Appellant’s Petition of Appeal and his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-a.Whether or not the Prosecution proved its case beyond reasonable doubt; andb.Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. 8.The court therefore dealt with the said issues under the following distinct and separate heads. I. Proof Of Prosecution’s Case 9.Ground of Appeal No (1), (2), (3), (4) and (5) of the Petition of Appeal were dealt with under this head as they were all related. 10.In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement. 11.It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR. This court dealt with the same under the following distinct and separate heads. A. Age 12.The Appellant submitted that the age of the Complainant, YM (hereinafter referred to as “PW 1”) was not proved beyond reasonable doubt. He argued that the age on the charge sheet, the P3 Form and the sworn evidence of PW 1 could not suffice since none of them claimed to have assessed the victim against her age. In this regard, he relied in the case of Eliud Ouma Agwara vs Republic [2015]eKLR where a question was raised as to whether anyone could know a child’s name than her own mother. 13.He argued that the Birth Certificate was obtained in a manner that was detrimental to justice in that PW 1’s mother was not aware of it and that he was not given an opportunity to cross-examine on who was the maker of the same. He added that the sentence meted on him was, therefore, a matter of conjectures not proved beyond reasonable doubt. He pointed out that the benefits of doubt should be solved in favour of the accused and that a retrial should be ordered and his conviction set aside because of insufficiency of evidence. 14.On its part, the Respondent submitted that the Charge Sheet indicated that PW 1 was sixteen (16) years of age at the time of the commission of the offence. 15.It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense. 16.It further asserted that PW 1 stated that she was sixteen (16) years old and that the Prosecution produced her Birth Certificate as exhibit in court which indicated her date of birth as 7th February 2008. It added that the Appellant did not rebut this evidence at all and, therefore, it had proved the ingredient of age beyond reasonable doubt. 17.PW1 testified that she was sixteen (16) years old at the time of the commission of the offence. Her mother, Penina Musimbi (hereinafter referred to as “PW 2”) testified that she was twenty-two (22) years old. 18.No 113961 PC Grace Nasimuyu Wafula (hereinafter referred to as PW 3”) produced her Birth Certificate which showed PW 1 was born on 7th February 2008. It was not clear to this court why PW 1’s mother was emphatic that her daughter was twenty-two (22) years old and not sixteen (16) years old. Be that as it may, a Birth Certificate was a conclusive proof of age in Kenya and, therefore, was admitted as evidence herein. 19.The incident took place on diverse dates between 9th May 2024 and 11th May 2024. She was, therefore, about sixteen (16) years at the material time of the incident. 20.As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at all material times. B. Identification 21.The Appellant did not submit on this issue. On its part, the Respondent submitted that PW 1 testified that she had sexual intercourse with the Appellant who she had stayed with for approximately three (3) days before she was rescued by her mother, PW 2. It asserted that, therefore, PW 1 could not have been mistaken as to his identity. 22.It stated that this was evidence of recognition which has previously been held by courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others vs Republic (1976-80)1 KLR 1566, 1568. It was emphatic that there was proper identification in the circumstances of this case as there was prior knowledge of the Appellant. 23.Notably, PW 1 stated that on the material day, PW 2 found her at the Appellant’s house. Her mother then took her to the police station and then to the hospital. She narrated that she was cooking ugali for the Appellant when the Appellant asked her to take off her clothes and that he laid on her and defiled her using his organ that he uses to urinate. She said that she left when he was done and that she had spent three (3) days in his house. 24.She further testified that the Appellant was a friend to her mother and that her mother had told her to call her uncle. 25.PW 2 stated that she knew the Appellant as a boda boda rider and that his mother as asked her to give her, PW 1 to stay with her. 26.As PW 1 and the Appellant knew each other as they both hailed from the same area, this court was satisfied that there could not be any mistaken identity as they were both known to each other. Identification was by way of recognition. C. Penetration 27.The Appellant submitted that the Trial Court erred in not finding that penetration was not proved beyond reasonable doubt. In this regard, he placed reliance on the case of Pius Arap vs Republic[2013]eKLR where it was held that the prosecution must prove criminal charge beyond reasonable doubt and any evidential gaps in the prosecution case raising material doubt must be in favour of the accused. 28.He asserted that PW 2 testified that PW 1 had a habit of going missing and that, therefore, she could be having other boyfriends. He added that PW 3 stated that there was another suspect that had been earlier arrested but that the investigations did not point to him as the person charged. He argued that PW 3 did not explain why the said suspect was released. 29.He invoked Section 124 of the Evidence Act and noted that the Trial Court did not record the reason why it believed that PW 1 was telling the truth. He was emphatic that the evidence of PW 1 was inconsistent with that of PW 2 and that the two (2) did not corroborate each other. 30.On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of PW 1 was corroborated by that of the Clinical Officer, Paul Mutiri Ndungo (hereinafter referred to as “PW 4”) which proved penetration. 31.It argued that the Appellant had not shown this court any inconsistencies or contradictions in the prosecution’s case. In this regard, it relied in the case of S.O.O vs Republic[2018]eKLR where it was held that the court should consider whether the contradictions and/or inconsistencies go to the root of the case. It added that the trial court considered the Appellant’s defence and found that the prosecution had proved its case beyond reasonable doubt. 32.PW 4 confirmed that there was defilement. He testified that on examining PW 1, she had a broken hymen, white discharge, cervical and vaginal laceration suggestive of penile penetration and that the high vaginal swab tests had urine blood cells and epithelial cells. He produced the P3 form, treatment notes and Post-Rape Care Form for PW 1 as exhibits in court. 33.In his defence, the Appellant did not denied being home on the material day but denied having defiled PW 1. 34.Notably, the proviso of Section 124 of the Evidence Act states that:-“Notwithstanding the provisions of section 19 of the Oaths and 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 by other material evidence in support thereof implicating him:Provided that where in a criminal case 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 if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (emphasis).” 35.Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. 36.Although PW 1 may be treated as a single witness, the evidence of PW 4 corroborated her evidence. 37.The Appellant’s submissions that the prosecution’s case had conflicting evidence and/or that a DNA test was needed was neither here nor there. Although he denied committing the offence, it was evident that PW1’s evidence that she was defiled on the material day was corroborated by PW 4’s medical evidence and that of PW 2 who corroborated her evidence that she found her at the Appellant’s house. The evidence that was adduced by the Prosecution outweighed the evidence that he tendered in court. The Appellant’s defence was a mere denial. 38.It was the view of this court that the evidence before the trial court was sufficient to have formed a basis for conviction as the Prosecution proved their case to the required standard, which in criminal cases, was prove beyond reasonable doubt. 39.In the premises foregoing, Ground of Appeal No (1), (2), (3), (4) and (5) of the Petition of Appeal were not merited and the same be and are hereby dismissed. II. Sentence 40.The Appellant did not raise a ground under this head, however, for completeness of record, this court found it prudent to address the same. 41.On its part, the Respondent invoked Section 8(1) and 8(4) of the Sexual Offences Act and submitted that the conviction and sentence was safe and proper and should be upheld. 42.Notably, the Appellant was charged under Section 8(4) of the Sexual Offences Act Cap 63A (Laws of Kenya). The same provides as follows:-“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 43.The sentence of fifteen (15) years was the minimum mandatory sentence. This court did not find reasons to disturb the same as that was lawful. Disposition 44.For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 19th June 2025 and filed on 25th June 2025 was not merited and the same be and is hereby dismissed. His conviction and his sentence of fifteen (15) years be and are hereby upheld as they were both safe. 45.Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 24TH DAY OF JUNE 2026…………………………………R. NYAKUNDIJUDGE