https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1350

Shitawa v Republic (Criminal Appeal E157 of 2022) [2026] KECA 1350 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1350 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E157 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between Patrick Shitawa Appellant and Republic Respondent (Appeal from the Judgment of the High Court at Eldoret (Chemitei, J.) delivered on 26th October 2018 in HCCRA No 109 of 2017) Judgment 1.The proceedings leading to this appeal began at the Chief Magistrate’s Court at Eldoret, where the appellant was charged with the offence of defilement, contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The particulars of the charge were that on diverse dates between 17th April 2016 and 26th May 2016, at Munyaka area in Eldoret East Sub-County, within Uasin Gishu County, the appellant, unlawfully and intentionally caused his genital organ (penis) to penetrate the genital organ (vagina) of SK, a child aged 14 years. 2.The appellant faced the alternative charge of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act, particulars being that on diverse dates between 17th April 2016 and 26th May 2016, at Munyaka area in Eldoret East Sub-County, within Uasin Gishu County, he touched the genital organ (vagina) of SK, a child aged 14 years, with his genital organ (penis). 3.The appellant was convicted of the main charge of defilement and was sentenced to 20 years’ imprisonment. His first appeal to the High Court was dismissed vide a judgment dated 26th October 2018. 4.The appellant filed what he refers to as grounds of mitigation where he pleads: that he is a first offender deserving of leniency; that he will take responsibility over the care of the complainant and her baby; that he has a medical condition requiring medication and a balanced diet; and that he is a sole bread winner for his aging mother. 5.The appeal was heard on 28th April 2026, with the appellant, appearing virtually from Rumuruti Main Prison and Mr. Okaka, Principal Prosecution Counsel, appearing for the respondent. In his written submissions in support of the appeal, the appellant appears to admit having committed the offence of defilement; he asks for forgiveness, stating that he has learnt his lesson and intends to be a law-abiding citizen, going forward. Nevertheless, because the appellant did not expressly abandon his appeal against conviction, we will proceed to consider the appeal on both conviction and sentence. 6.It is now settled in both statute and case law, that in considering a second appeal, the second appellate court must confine itself to matters of law. To this end, section 361(1)(a) of the Criminal Procedure Code provides that the Court of Appeal shall, on a second appeal, not hear an appeal on a matter of fact. 7.Addressing this issue, this Court, in its decision in Karingo vs. Republic [1982] KLR 213 stated that:“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. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did.” 8.In order to sustain a conviction on the charge of defilement, the three essential elements of the victim’s age, act of penetration and positive identification of the assailant must be established. In John Mutua Munyoki vs. Republic [2017] KECA 376 (KLR) this Court affirmed that the three elements must be proved beyond reasonable doubt. 9.Regarding the standard of proof of the age of a minor in a defilement case, this Court, in its decision in Edwin Nyambogo Onsongo vs. Republic [2016] eKLR stated the following:“…the question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 10.In the appeal now before us, there is evidence that the mother of the minor (PW 2) produced a birth certificate showing the date of birth of the minor as 15th August 2002. The two courts below took this official document issued by the government as irrefutable proof of the age of the minor. We have no reason to depart from this concurrent finding. 11.In proving penetration, Dr. Eunice Telet (PW4) produced a P3 form filled and signed by Dr. Yatich, who at the material time, was stationed at Moi Teaching and Referral Hospital. Dr. Telet confirmed before the trial court that she was familiar with the handwriting and signature of Dr. Yatich. 12.The P3 form evidenced that the minor had hymenal tears at 9 O’clock, posterior fourchette tear, healing wound on the labia minora and bacterial infection. In its decision in Mark Oiruri Mose vs. R [2013] KECA 67 (KLR) this Court held that surface or partial penetration is sufficient to establish this element. In this case, the evidence of penetration as recorded in the P3 form was overwhelming. 13.In addition, the minor was found to have a pregnancy of 5 weeks and 3 days and a DNA examination conducted upon the appellant’s request confirmed that there was 99.99% chance that the appellant was the father of the child carried by the minor. We must at this stage restate that as held by this Court in Williamson Sawa Mbwanga vs. R [2016] eKLR, pregnancy or paternity are not crucial elements in a charge of defilement. This means that even without the DNA evidence, there was sufficient evidence to sustain the charge. However, the appellant insisted that the DNA test be done and it confirmed that he was indeed the father of the child. 14.With regard to identification of the appellant as the perpetrator of the offence, the prosecution called the minor (PW1) who narrated how in the course of running an errand for her minder, one Millicent, she detoured and went looking for her mother, who she did not find. She met the appellant who promised to take her to his sister’s house but instead took her to his house where he detained her and defiled her repeatedly for a period of over a month. 15.The minor’s mother (PW2) testified that after being notified by Millicent that her daughter was missing, she looked for her and traced her at the appellant’s house after a month, by which time she was pregnant. The appellant is said to have admitted that he was living with the minor and PW1 told the trial court that the appellant turned violent as she was being rescued by her mother and the appellant’s sister. Having spent over a month with the appellant, the minor knew him well and identification of her assailant was positive. With the corroborative evidence of the minor’s mother, identification of the appellant was watertight. 16.On the whole, we are satisfied that the prosecution established the three elements of defilement to the required standard of beyond reasonable doubt. This would explain why the appellant in his written submissions appears to admit having committed the offence. 17.With regard to the appeal on sentence, all we will say is that the appellant was handed the minimum sentence set by statute and as held by the Supreme Court in Republic vs. Joshua Gichuki Mwangi [2024] KESC 34 (KLR) where a minimum sentence is imposed by statute, courts have no room to interfere with such a sentence. 18.The entire appeal is therefore for dismissal and we so order. DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb.....................................JUDGE OF APPEALW. KORIR.....................................JUDGE OF APPEALL.M. NDOLO.....................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar