https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10440

Ruta v Republic (Criminal Appeal E74 of 2025) [2026] KEHC 10440 (KLR) (22 June 2026) (Judgment) Neutral citation: [2026] KEHC 10440 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Appeal E74 of 2025 PK Rotich, J June 22, 2026 Between Wesley Gershon Ruta Appellant and Republic Respondent (Being on Appeal from the Judgment and sentence of Hon. R.O. Mbogo(SRM)delivered on 16/2/2024 in Mombasa CM SO Case No. E058 of 2022) Judgment 1.The appellant was charged with 4 counts of defilement contrary to Section 8(2) of the Sexual Offences Act. In the alternative, he was charged 4 counts of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 2.The particulars of Count 1 are on diverse dates between the month of March 2022 and 9th May, 2022 at [Particulars Withheld] in Nyali Sub-County, the accused intentionally and unlawfully, caused his penis to penetrate the anus of H.A, a boy aged 9 years. 3.The particulars of the of alternative count to Count 1 are on diverse dates between the month of March 2022 and the 9th May,2022 at [Particulars Withheld] in Nyali Sub-County, the appellant intentionally and unlawfully touched the anus of H.A. a boy aged 9 years with his penis. 4.The particulars of the 2nd count are that during the month of March, 2022 at [Particulars Withheld] in Nyali Sub-County within Mombasa County, the accused intentionally and unlawfully caused his penis to penetrate the anus of A.J, a boy aged 10 years. 5.The particulars of the alternative count to count 2 are that during the month of March 2022 at [Particulars Withheld] within Mombasa County, the appellant, intentionally and unlawfully touched the anus of A.J, a boy aged 10 years with his penis. 6.The particulars of count 3, are that during the month of March 2022 at [Particulars Withheld] in Nyali Sub-County, the accused, intentionally and unlawfully caused his penis to penetrate the anus of J.S, a boy aged 10 years. 7.The particulars of the alternative charge to count 3 are that during the month of March, 2022, the appellant unlawfully touched the anus of J.S a boy aged 10 years with his penis. 8.Finally, the particulars of Count 4 are that during the month of February 2022 at [Particulars Withheld] in Nyali Sub-County within Mombasa County, the accused, intentionally and unlawfully caused his penis to penetrate the anus of S.N, a boy aged 10 years. 9.The particulars of the alternative count to count 4 are that the accused intentionally and unlawfully caused his penis to penetrate the penis of S.N a boy aged 10 years. 10.The trial court considered the evidence of 10 prosecution witnesses and 1 defence witness and found the accused guilty of all the counts of defilement. Upon conviction, the trial court sentenced the to serve life imprisonment. 11.Being dissatisfied with the conviction and sentence of the trial court the appellant preferred this appeal. The appeal is based on 6 grounds of appeal which can be summarized as follows:a.That the learned trial magistrate erred in law and fact by not considering that the ingredients of the offence of defilement were not proved to the required standard.b.That the learned trial magistrate erred in law and fact by not considering the appellant’s defence. 12.PW1, A.J, was aged 10 years old when he testified and lived in [Particulars Withheld] with his parents and siblings. One day, PW1 stated, the appellant who is a coach asked to go with him to Timboni. PW1 was with S and A. He also gave him his phone to play with and asked him to sit on his lap. 13.Thereafter, PW1 stated, the appellant asked him to get up so that he could remove his zip, which he, did but the appellant removed his shorts and inserted his penis into PW1’s anus and he felt pain. Thereafter, PW1 stated, he wore his shorts and went home and the appellant gave him Ksh.20. 14.The complainant, further, stated that he told no one about the incident herein but it became known and he was taken to hospital and police station. 15.PW 2, JS, stated he was aged 10 years old and was a class 4 pupil. He also lived in [Particulars Withheld] together with his parents, brother and sister. 16.PW2, further, stated that the apellant requested him and A to go to Timboni with him. At Timboni, PW2 stated, the appellant told him to sit on his lap, removed his zip and inserted his penis into his anus. 17.PW2 also stated that he did not tell anyone about what happened but he was taken to hospital and police station. 18.On cross-examination, PW2, stated stated he did not see the accused removing his zip or removing his “dudu”(penis) 19.On re-examination, the witness stated he told Aunty Arafat what happened. He also stated that he felt pain when the accused inserted his penis into his anus. Further, PW2 stated that he knew the appellant by face and identified him in court. 20.PW3, AK, stated he was in standard 5 and was aged 11 years. He lives at [Particulars Withheld] with his parents, sister and brother. He also stated that he met the appellant at a football field when schools were closed and went with him to Milimani where the gave him his phone to play games. PW3, further, stated that the appellant told him to sit on his laps and told to get up so that he could adjust his shorts. Thereafter, PW3, the appellant removed his zip but he ran away as the appellant chased him. 21.PW4, HA, was aged 10 years and was in PP2. He lived in [Particulars Withheld] with his grandmother. He stated that he had seen the appellant man times. He also stated that the appellant gave him his phone to play as he sat on his laps. Thereafter, PW4 stated, the appellant inserted his penis into PW1’s anus and he felt pain. He did this several times, P4 stated and gave him Kshs. 20 and bought him cake, books and soda. He saw him with A his friend and told Mama S the appellant was doing bad manners to themand they were taken to hospital and to the police station. 22.On cross-examination, PW4 stated he saw the appellant’s penis as he inserted it into his anus. 23.PW5, SN, lived in [Particulars Withheld] and was aged 10years old. He lived with their parents. He has two brothers and two sisters and they live with their parents. PW5 stated that he played football with his friends and the appellant was their coach. He also stated that the appellant bought him football jerseys. 24.PW5, further, stated that the accused took him to his shop and told him to remove his clothes. He wore jeans and a shirt. Thereafter, PW5 stated the accused did bad manners to him as he sat down. He opened his zip, the witness stated and he sat on his laps. He was taken to hospital. 25.PW6, AN, stated he was in class 3 and was aged 9 years. He lived in [Particulars Withheld] with his two brothers and their parents. He played football with his friends and the appellant was their coach. PW6, further, stated that the appellant took him to a private place and caressed his private parts. On cross-examination, PW6 stated the appellant removed his penis and showed SN(PW5) and him. 26.PW7, BSS lived in [Particulars Withheld] and sells food stuff. He testified that, HA (PW4), who is his grandson revealed to him that the appellant had been touching his private parts and putting his penis in his anus. PW7 also stated that the appellant bought school books, set, cake and bread for his grandson.PW7 received the items and reported this matter to Chief and the appellant was arrested. On cross-examination, PW7 stated the kids herein opened up after the appellant was arrested. 27.PW8, Ruth Likhechi, stated when she came back from work, she found the appellant sitting with her son AN(PW6). He questioned him why he was spending time with her son and he told her he was a coach. The following day, PW1 stated, the came looking for her son saying he had asked him for his phone. When this case was reported to the police, PW8 stated, her son revealed her that the appellant had touched his private parts. On cross-examination, PW8 stated the accused found the appellant with her son at 8:00 pm. 28.PW9, Dr. Gabriel Munyala, is a Senior Medical Officer at Coast Teaching and Referral Hospital. He examined the complainants and filled their P3 forms on 12.5.2022 29.PW9 stated, JS (PW2) was aged 10 years. He also produced a P3 form for JS (PW2) filed using details from his PRC form (Exhibit 2.) The P3 form (P. Exhibit 1) indicates that PW3 had abrasion at 12 o’clock on his anus. 30.PW 9, further, stated AJ (PW1) was aged 10 years and that anus had healed with abrasion of 6 to 12 O’clock. The age injuries, PW9 stated, was a few days old and he was put him on STI treatment. His P3 form produced as P. Exhibit 3 and PRC form as P. Exhibit 4. 31.PW9, further, stated HA’s (PW4) anus orifice was 0.5 cm and was healed with lacerations. Age of injury, PW9 stated, was a few days. His P3 form produced as P. Exhibit 5 and PRC form produced as P. Exhibit 6. 32.Finally, PW9 stated he examined SN(PW5) and found that he had healed lacerations around his anal orifice. The age of the injuries was a few days ago. Produced SN’s P3 form as P. Exhibit 7 and corresponding PRC form as P. Exhibit 8. 33.On cross-examination by the state all victims had fair memory and could recall accused. PW7 also stated lacerations may take hours, days or weeks to heal. 34.PW10, No.86852 Police Constable Wilfred Ngaya produced copies of the birth certificates for the minors. The same were marked as P. Exhibit 9, 10, 11 and 12 respectively. 35.In his defence under oath the appellant stated that he lives in [Particulars Withheld] and sells Ice and cold water. 36.On 9/5/2021, the appellant stated, he went to Kongowea market to buy fruits but was attacked by 3 police officers in uniform. At a police station, the appellant stated, the police claimed he was in a gang which robs people and they claimed he killed someone in [Particulars Withheld]. Wanted to know the whereabouts of “dad” motorcycle and probox. The appellant also stated the fabricated evidence of him defiling children. 37.The issue for determination in this matter is whether the appellant defiled the 4 complainants herein. This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses. (see.Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR) 38.In the case of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated:“The critical ingredient forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant” 39.PW10, No.86852 Police Constable Wilfred Ngaya produced the copies of the birth certificates of the minors. The same were marked as P. Exhibit 9, 10, 11 and 12. The certificates show that SN was born on 16.2.2012, JS was born on 7.7.2012, AJ was born on 8.7.2012 and HA was born on 27.11.2013. 40.The alleged defilement of the boys herein occurred on diverse dates between March 2022 and 9th May, 2022. It is, therefore, certain that SN, JS, AJ were aged 10 years at the time and HA was aged 9 years at the time. 41.On proof of penetration, PW1, A.J, testified PW1 the appellant who is a coach asked to go with him to Timboni. PW1 was with S and A. He also gave him his phone to play with and asked him to sit on his lap. Thereafter, PW1 stated, the appellant asked him to get up so that he could remove his zip, which he, did but the appellant removed his shorts and inserted his penis into PW1’s anus and he felt pain. PW12, further, stated he wore his shorts and went home and the appellant gave him Ksh.20.PW 2 JS, PW3 AK, PW4 HA and PW5 HA gave a similar narration although PW3 stated he managed to escape. 42.The evidence of PW1, PW2, PW4 and PW5, Dr. PW9, Dr. Gabriel Munyala, is a Senior Medical Officer at Coast Teaching and Referral Hospital who examined the complainants and filled their P3 forms on 12.5.2022 which were produced in court 43.JS (PW2) P3 form indicated he had abrasion at 12 o’clock on his anus and AJ(PW1) P3 form shows his anus had healed with abrasion of 6 to 12 O’clock. The age AJ injuries, PW9 stated, was a few days old. 44.HA’s (PW4) P3 form indicated that his anus orifice was 0.5 cm and was healed with lacerations SN(PW5)PW3 form showed he had healed lacerations around his anal orifice. The age of the injuries suffered by AJ was a few days old. 45.Based on the evidence it very clear the appellant penetrated the anus of PW1, PW2, PW4 and PW5.His modus operandi was that he would lure the boy giving them his phone to play with as they sat on his lap. Thereafter, he would unzip, remove their shots and insert his penis into their anus. 46.On identification, the boys and the appellant knew each other and recognized him. He was their football coach. After defiling PW1 he gave him Kshs 20. He also enticed PW4 by buying him cake, books and soda and he bought PW 5 football jerseys. 47.It is my finding that trial established the ingredients of defilement against the accused and rightly convicted him. 48.The evidence of the accused that he was implicated by the police in serious crimes like robbery and they framed him in evidence against is diversionary and unfounded 49.The upshot of my finding is that this appeal lacks merit and the same is dismissed DATED AND DELIVERED ONLINE VIA MICROSOFT TEAMS PLATFORM THIS 22ND DAY OF JUNE 2026.HON. P. K. ROTICHJUDGEIn the presence of:The accused in personMs.Cherop for DPP