https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1315

RNG v Republic (Criminal Appeal 87 of 2016) [2026] KECA 1315 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1315 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 87 of 2016 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between RNG Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Nyeri (Mshila, J.) delivered on 13th October, 2016 in Criminal Appeal No. 6 of 2015.) Judgment 1.This is a second appeal against the judgment of the High Court of Kenya at Nyeri (Mshila, J.) dated 13th October, 2016 in Criminal Appeal No. 6 of 2015. 2.A brief background of the matter is that the appellant was initially charged before the Senior Principal Magistrate’s Court at Mukurweini in Criminal Case No. 3 of 2015, with the offence of incest contrary to section 20(1) and (2) of the Sexual Offences Act No. 3 of 2006 and in the alternative charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Act. 3.Particulars of the main count were that the appellant on the 7th day of December 2014 at [Particulars Withheld] in Mukurweini Sub- County within the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of MWN, a child aged thirteen (13) years, who was to his knowledge his granddaughter. 4.Particulars of the alternative count were that the appellant on the 7th day of December, 2014 at [Particulars Withheld] in Mukurweini Sub-County within the Republic of Kenya intentionally and unlawfully committed an indecent act with a child MWN by intentionally touching the private parts of the said child aged thirteen (13) years. 5.The appellant pleaded not guilty to the offence. At the hearing thereof, the prosecution called six (6) witnesses. MWN was PW1, the victim who testified under oath stated that on 7th December, 2014 at around 5.30 p.m. the appellant, who she identified as the brother to her grandmother, came to her house and found her home with her younger sister RW, PW2. The appellant asked her to accompany him to the house of one C, which she initially declined, but after the appellant promised to buy her a soda, she agreed, and they set off. As she walked with the appellant, he showed her the alleged C’s home across the river and directed that they walk through the forest, as C’s home was in a certain direction of the forest. The victim stated that as they went along, the appellant choked her, put his arm around her neck and tripped her, causing her to fall. He then slapped her after he ordered her to remove her trousers, and she refused. The appellant then told the victim to remove her trousers again, which she refused to do. The appellant proceeded to remove her trousers and panties, then his own, and had sexual intercourse with the victim. 6.PW1 stated further that the appellant promised to get her a phone so that they could communicate and any other thing she wanted. He further told her that they would be together and that if she told her mother or anyone, he would kill her. The appellant then put Kshs.50 in the victim’s pocket, and when they came across some people, he pointed the way back home and left. The victim decided to go find her mother, AW, PW3, at the Mukurweini Market, reported what had happened and went with her mother to Mukurweini Police Station to report the incident. At the station they were sent to Mukurweini Hospital by PC Gasambi Hamisi PW5. She was examined and treated at the hospital. PW6, Dr. Mungai Gichui produced the medical treatment notes, including the P3 form before the court which confirmed that PW1 was defiled on the material day. 7.PW1’ sister PW2, was aged eleven (11). She testified that she was home with PW1 on the material day. She confirmed that the appellant visited their home between 5.30 p.m. and 6 p.m. and insisted that PW1 goes with him to C’s house. PW2 stated that she saw her sister again later that night accompanied by their mother. 8.Simon Kibera Kibue, PW4 an Assistant Chief of Gaturia Sub Location, received the incest report from PW3 on the 7th of December, 2014. After a failed attempt to apprehend the appellant on 8th December, 2014, PW4 learned that the appellant was eventually arrested in Nairobi on the 4th of January, 2015 and transported to Nyeri for trial by PW5. PW5 corroborated that evidence. 9.The appellant gave an unsworn statement in his defence. He called no witnesses. It was his case that he was working on 7th December, 2014 and that at 4 p.m. his friend, one Julius Kei, told him that there was a dance in Othaya. He went home, showered, changed and went to Othaya with his friend, but on the way, he was stopped by a policeman who alleged that there was a woman he owed him. He said he spent the night in Othaya with his friend. That on 8th December, 2014 he was arrested by a police man who demanded money from him, and that since he had no money he opted to run away from the police officer and go to Nairobi. He later learnt that he was being sought and subsequently presented himself to the police in Huruma from where he was picked by officers from Mukurweini Police Station. 10.In the judgment of the trial court delivered on 16th February, 2015 Hon. Kagendo, SPM found that the relationship between the appellant and PW1 was that of a grandfather and grandchild, which was not contested in evidence. The court found that the age of the victim was proved to be 14 years. The court also found that the victim was examined and treated in good time. The doctor’s findings of bruises, bleeding and lacerations along the vaginal wall, as well as broken hymen and whitish discharge were conclusive proof of penetration. 11.Further, the trial court believed PW1 and PW2 to be telling the truth due to their demeanor in court and found that the appellant’s escape to Nairobi for almost a month after the incident was not a behavior consistent with that of an innocent person. Additionally, the trial magistrate did not find merit in the appellant’s argument that there was a dispute of a business shed between him and PW3, nor did the court find that PW1 had been coached by PW3 as the appellant alleged. 12.In conclusion, the trial magistrate was satisfied beyond a reasonable doubt that the appellant had engaged in an act of incest with the victim. The appellant was therefore convicted on the main charge of incest. The trial court, noting that there was an upsurge in sexual violence in Nyeri County; that the appellant showed no remorse for taking advantage of a child whom he should have been protecting and instead fled the jurisdiction after the act sentenced him to serve life imprisonment. 13.The appellant appealed to the High Court challenging the trial court of convicting him based on evidence riddled with inconsistencies; the prosecution had not proved its case to the required standard and that his defence was rejected without any reasons being given. In a judgment dated 13th October, 2016 Mshila, J. found that the prosecution had proved its case on the main offence of incest to the required threshold. She found that the appellant did not challenge the age of the victim or his knowledge of their relationship as granddaughter and grandfather. Further, she found the evidence of penetration was corroborated through medical evidence. On the appellant’s defence the judge agreed with the trial court that it was a bare denial that did not cast any doubt on the prosecution’s case. On the sentence being harsh and excessive, the learned Judge found that the trial court passed the sentence provided by law based on the age of the victim. The appeal was therefore dismissed. 14.The appellant has now appealed to this Court vide his undated memorandum of appeal, stamped received on 26th October, 2016. He faults the High Court of upholding the conviction without realizing the trial magistrate failed to warn itself of the danger of relying on the evidence of a single evidence as prescribed under section 127(1)(3) of the Evidence Act; for failing to find that the trail court did not consider the issue of a grudge that existed between PW3 and appellant; and, that the High Court failed to note that the trial magistrate based the appellant’s conviction on the upsurge of many cases of sexual abuse in Nyeri County but not that the appellant was proved guilty beyond reasonable doubt. 15.During the virtual hearing of this appeal, the appellant’s counsel, Mr. Mbarire informed that Court that he was relying on the memorandum of appeal dated 4th April, 2025. Only one ground is raised, that the prosecution case was not proved beyond reasonable doubt and as a result the High Court fell into error in upholding the conviction and sentence. 16.Counsel urged that it was the appellant’s plea to this Court to ultimately hold that in absence of a Birth Certificate, nothing short of a Medical Certificate of Age commonly referred to as “Age Assessment Report” or “Dental Age Assessment Report” would suffice in determining the age of a person. That age could not be proved through Baptism Cards, not by word of a mother, a father or a guardian, not by observation and common sense, but solely on the basis of a Birth Certificate or a Medical Certificate of Age as a matter of conclusive evidence. 17.The appeal was opposed. The learned Prosecution Counsel Mr. Solomon Naulikha, in answer to the issue of conviction without compliance with section 124 pf the Evidence Act submitted that from the record of the trial magistrate, the court observed the demeanour of PWI and PW2 and concluded that it believed that they were telling the truth, and thus, the trial magistrate warned herself of reliance on the evidence of a child. He urged that the evidence of PW1 was corroborated by PW2 and the medical evidence to support evidence of penetration. In regards to proof of age, counsel urged us not to depart from the well settled jurisprudence as urged by the appellant’s counsel. He submitted that the prosecution adduced sufficient evidence to prove the age of PW1 through the evidence of her mother PW3 and medical evidence produced by PW6. 18.In a second appeal like this, we are required to consider only issues of law. (See section 361 of the Criminal Procedure Code, and Karani vs. Republic [2010] 1 KLR 73). We must resist the temptation of dealing with facts of the case which were tried by the trial court and retried on first appeal. That mandate was recognized as follows in Stephen M'Irungi & Another vs. Republic [1982-88] 1 KAR 360 where the following passage appears:"Where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed finding of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law." 19.We have considered this appeal, written submissions by the two opponents, as well as the memorandums of appeal filed. Having done so we find that what falls for our determination is whether the prosecution adduced evidence in support of PW2’s age, and whether that evidence suffices. In his argument before us Mr. Mbarire urged us to depart from the jurisprudence that has settled the issue of how the age of a child victim in a sexual offence can be proved. We note that the counsel did not cite any case but acknowledged that the evidence required to prove the age of a child victim in a sexual offence case is settled in various decisions of the Superior Courts. He then urged us to depart from those decisions and hold that only a birth certificate or age assessment report would suffice. On that basis, counsel urged that since none of these were adduced in evidence, the case stood unproven. 20.We find the appellant’s counsel’s submissions urging us to depart from jurisdiction that has settled the issue of the nature of the evidence required to prove the age of a minor in defilement cases without sound basis, given very progressive jurisprudence, both from this Court and the Supreme Court settling the matter. We thus reject his invitation. 21.The appellant was not able to dislodge the evidence of the prosecution, both at the trial court and on appeal. The case was that of incest; the appellant defiled his own granddaughter, he did not challenge the evidence on her age at the trial. Raising it at this stage was purely an afterthought. 22.We find no merit in this appeal and accordingly we dismiss it. DATED AND DELIVERED IN NYERI THIS 3RD DAY OF JULY, 2026.S. OLE KANTAI................................ JUDGE OF APPEALJ. LESIIT................................ JUDGE OF APPEALALI - ARONI................................ JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR