https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6759

RMK v Republic (Criminal Appeal E035 of 2025) [2026] KEHC 6759 (KLR) (Crim) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6759 (KLR) Republic of Kenya In the High Court at Nyandarua Criminal Criminal Appeal E035 of 2025 KW Kiarie, J May 20, 2026 Between RMK Appellant and Republic Respondent (From the original conviction and sentence in S.O. Case No. E057 of 2024 of the Principal Magistrate’s Court at Ol Kalou by Hon. L. A. Mwera, Resident Magistrate) Judgment 1.RMK, the appellant herein, was convicted of the offence of defilement of a girl contrary to section 8 (2) of the Sexual Offences Act No. 3 of 2006. 2.The particulars of the offence were that on the 25th day of September 2024, at [Particulars Withheld] in Nyandarua West sub-county within Nyandarua County, he intentionally caused his penis to penetrate the anus and the vagina of T.W.M., a child aged four years. 3.The appellant was sentenced to serve life imprisonment. He has appealed against both conviction and sentence. He was represented by Nderitu Komu, advocate. He raised the following grounds of appeal:a.The trial magistrate erred in law and fact by making a finding that the prosecution had proved the ingredients of the charge of defilement.b.The trial magistrate erred in law and fact by making findings that were against the weight of evidence.c.The learned trial magistrate erred in law and fact by failing to find that the prosecution's evidence was full of discrepancies and contradictions that dented its credibility.d.The trial magistrate erred in law and fact by failing to consider the defence evidence.e.The trial magistrate erred in law and fact by making a finding that the medical evidence corroborated the evidence of the complainant.f.The trial magistrate erred in law and fact by failing to find that the prosecution's evidence could not sustain a conviction.g.The trial magistrate erred in law and fact by convicting the appellant.h.The trial magistrate erred in law and fact by passing a sentence that was excessive under the circumstances. 4.The respondent did not file any response or submissions. 5.This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, keeping in mind that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno vs the Republic [1972] E. A 32 to guide my decision-making process. 6.Section 8(1) of the Sexual Offences Act defines defilement in the following terms:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.An offence of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients:a.That there was penetration of the complainant’s genitalia;b.That the accused was the perpetrator; andc.The victim must be below eighteen years old.These are the ingredients that the prosecution must prove against an accused person. 7.An acknowledgement of birth document in respect of T.W.M. was produced. It states that she was born on the 13th day of May 2020. As of the 25th day of September 2024, she was 4years and 4 months old. The victim's age was therefore proven to meet the required standards. 8.The evidence of T.W.M. (PW3) was as follows:Uncle was sleeping on the Pauline bed. It was at night. He was alone on the bed. I had slept on the bed playing with a bike. My uncle (referring to the accused) peed on me where I go [sic] for a short call. (The minor point at her private parts). My uncle inserted something on the part of [sic] my body (the minor points at the vagina). It happened inside the house in the Pauline room.I felt pain. I live in the said house. He removed my clothes. He also removed his inner clothes and also removed my lower clothes. He then inserted the thing for urinating on me (the witness points at her vagina). 9.Though she did indicate when this occurred, the charge states that it was on the 25th day of September 2024. The evidence of J.W.G. (PW1) testified that the appellant was in the home on the 25th day of September 2024 and left the following day. This was what PW8, the child’s grandmother, testified to. The appellant did not dispute this fact. 10.The complainant’s mother took her for camel and horse riding on the 20th day of October 2024. While at home, the child informed her that “uncle alinidunga kasusu na kitu yake ya kukojoa na akakojoa”. The child had a swelling on her vagina. This prompted her to take her for examination. 11.Elizabeth Wangui (PW6) is a registered nurse based at Brook Cherith, Nyakarianga health facility. She examined the complainant on the 21st October 2024. The minor’s labia minora was swollen, and the hymen was broken. There was a bit of blood, which was not fresh. There was a tear towards the perineum which bled on touch. 12.It was curious that the child’s genitalia could remain actively bleeding for a period of almost one month. There was no explanation for this phenomenon. 13.The notes from the facility, which were produced as the prosecution’s exhibit 1(b), indicate that the report by the complainant was that her grandfather had inserted his private part into hers. 14.J.W.G. (PW1) stated that between September 25th and 20th October, the appellant did not visit the home. The medical evidence, therefore, suggests that if indeed the complainant was defiled, then it must have been proximate to the date of medical examination. This removes the appellant, considering what J.W.G. (PW1) said. 15.When the child mentioned a grandfather inserting his penis into her genitals, the evidence should have clarified which grandfather she meant, for it was clear she referred to the appellant as her uncle. 16.The prosecution presented conflicting evidence regarding the location where the appellant is accused of defiling the complainant. PW1 testified that while assisting in cooking in a detached kitchen, the appellant and the child were alone in the sitting room. However, the complainant said that the appellant was lying on Pauline’s bed. She was also in the same bed when he defiled her. She, however, changed her version during cross-examination and said that he defiled her while she sat on a chair. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283(Madan, Miller and Potter JJA) held:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 17.It was not safe to rely on the evidence of the complainant without corroboration. 18.The complainant was 4 years old at the time of the incident. If the appellant had indeed defiled her, it would have been noticed, given the excruciating pain she could have experienced. There were other people in the homestead, including her grandmother, who could not have failed to notice that she was in agony. In the case of Ben Maina Mwangi v Republic [2006] eKLR Lesiit, J. (as she then was) observed:Bearing in mind she was a child of tender years, being only 4 years at the time, for the offence to be proved, there should have been evidence adduced to show that the Appellant used some force on her or something tending to show an assault or infliction of pain. At least some evidence needed to be adduced from which it could be construed that defilement took place. Considering the Complainant’s age as compared to the Appellant, if any attempt were made to penetrate the Complainant’s private parts, it would be expected that the Complainant must have felt pain, if not excruciating pain. There is no way the Complainant would forget the experience or that detail in her evidence. 19.The prosecution's case had glaring gaps that left more questions than answers. 20.It would appear that the prosecution relied heavily on the broken hymen to charge and prosecute the appellant. The Court of Appeal in the case of P. K.W vs Republic [2012] eKLR said:15.In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse"16.Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769. 21.In this case, the complainant’s mother took her for horse and camel riding the day before her medical examination. Ernest Gakere (PW7), a clinical officer who completed the P3 form, acknowledged that the injuries on the complainant’s genitalia could result from climbing onto a camel. 22.Based on the foregoing, I make a finding that the appellant's conviction was unsafe. The conviction is quashed, and the sentence is set aside. The appellant is released unless lawfully detained otherwise. DELIVERED AND SIGNED AT NYANDARUA, THIS 20TH DAY OF MAY 2026KIARIE WAWERU KIARIEJUDGE