https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9024

Simiyu v Republic (Criminal Appeal E050 of 2024) [2026] KEHC 9024 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9024 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal E050 of 2024 RN Nyakundi, J June 26, 2026 Between Zacharia Simiyu Appellant and Republic Respondent Ruling 1.The Appellant was charged of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. of 2006. The particulars of the offence were on the 30th day of August 2023 at [Particulars Withheld] village in Kapseret Sub County within Uasin Gishu County, unlawfully and intentionally caused his penis to penetrate he vagina of KC a child aged 4 years. 2.In alternative charge the of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offence Act No. 3 of 2006. The particulars of the offence were on the 30th day of August 2023 at [Particulars Withheld] village in Kapseret Sub County within Uasin Gishu county, unlawfully and intentionally touched the vagina of KC a child aged 4 years with his penis. 3.The application is based on the following grounds:a.The learned trial magistrate erred in law and fact in convicting the appellant in a charge not proved beyond reasonable doubt.b.That the learned trial magistrate erred in law and fact by convicting appellant on charges that were not tallying and were unfavorable.c.That the sentence of 30 years is harsh and excessive and goes beyond life expectancy as it was held in the case of Ali Abdallah Mwanza Court of Appeal Criminal Application No. 259 of 2012 at Mombasa.d.That I pray to be present during the hearing of the appeal to enable me lodge more grounds on appeal.e.Reason wherefore: - I pray that this my appeal may be allowed, conviction quashed, the sentence be set aside and I be free at liberty forthwith. Decision 4.The Appellant in this case was arraigned in Court charged, tried and subsequently found guilty, convicted and sentenced to 30 years imprisonment of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. He filed an appeal as premised in the grounds of appeal challenging the elements of the offence for reasons that they were not proven beyond reasonable doubt. In the submissions before Court the Appellant’s Legal Counsel on analyzing the evidence on record was of the strong view that the Learned Trial Magistrate did not correlate the evidence of PW3 who was the star witness to the prosecution case. This was in line of the principles on identification which seems to be in doubt to place the Appellant at the scene of the crime. It was Learned Counsel’s contention that in the prosecution case the evidence of the father of the victim was not part of the crucial evidence that could have been relied upon to prove the element of the perpetrator now Appellant to this appeal. 5.This is an appeal from the Subordinate Court and the guiding principles are now well settled as can be appreciated in the following case law: In a first appeal the court is obliged to reconsider the evidence, assess it and make appropriate conclusions about it, remembering that it has not seen or heard the witnesses and making this is an individual choice or exercise of a discretion. See British Fame (Owners) v Macgregor (Owners) [1943] 1All ER 33; Shariff v Sethma [1963] EA 249. A court on appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did. The Court on first appeal has jurisdiction to review the evidence in order to determine whether the conclusion originally reached on that evidence should stand. It is a strong thing for an appellate court to differ from the finding on a question of fact of the judge who tried the case and who has had the advantage of seeing and hearing the witness. But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion. See Peters v Sunday Post Ltd [1958] EA 429; Shah v Aguto [1970] EA 265. 6.The judgment of the trial Court navigated sufficiently so with regard to the elements of defilement which constitutes penetration and the age of the victim and finally post of identification of the Appellant. The trial Court also had the advantage of observing the truthfulness and convincingness of the witnesses who were before that Court. As a first appeal’s Court I have gone through the evidence of PW1 with regard to the circumstances surrounding the defilement. The Appellant in his defence did not controvert the evidence of the victim in so far as the penetration of her private parts were concerned. This evidence of PW1 was corroborated with that of PW2 who happens to be her biological mother. As if that is not enough PW2 stated in Court that she saw the Appellant and the minor heading to the avocado plantation. It did not take long when the victim came out of the plantation, they took the liberty to examine her private parts and they found out that it had been interfered with by the third party. Given the age of the victim one cannot say it was self-infliction injury. When it came to the issue of the age of the victim her biological mother gave the historical foundation of her birth which was at MTRH on the 6th of October 2018. And certificate of birth number 883546 was issued on 8th August 2019. The conclusion I draw as an appeals Court is that, the elements of the offence of defilement as defined under the Sexual Offences Act were proven beyond reasonable doubt. 7.In a nutshell the grounds of appeal remain to be grounds without substantiation by way of evidential material as required by law of evidence, that once a prima facie case has been established it is the duty of the opposing party to avail evidence to discount or to counter that other evidence of the complainant. It is clear that the primary consideration of an appeals Court is to establish for the first time whether the judgment of the trial Court was tainted with illegality, irregularity, error of facts and law on the face of the record, and that the evidence as evaluated by the trial Court did not prove the offence as charged against the Appellant. 8.In this case and appeal, I am afraid that the prosecution discharged the burden of proof of beyond reasonable doubt in the context of Section 8(1) of the Sexual Offences Act. The theory by the defence that key witnesses were not summoned to testify remains a hypothesis whose enquiry did not meet the said threshold to shake the evidence by the Prosecution on the elements of the offence proven beyond reasonable doubt. I dare say that the best description of this standard was provided for by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 (King's Bench):...the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it's possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice. 9.And for those reasons as established in countless cases and assessing the totality of the evidence now on record both conviction and sentence must be affirmed and the appeal dismissed for want of merit. The only thing which the Appellant should not escape is to review the custodial sentence for 30 years imprisonment imposed by the trial Court in breach of the Parliamentary Legislative Scheme in which they enacted a penalty or punishment of life imprisonment for any Kenyan who defiles a victim/minor sexually while under the age of 11 years. It is even more aggravating for our case here that the victim was aged 4 years as proven by the Birth Certificate admitted in evidence during the hearing of both the Prosecution and defence case. The Apex Court of the land in the case of Republic vs Julius Kitsao Manyeso and Petition E013 of 2024 [2025] KESC 16 ruled that mandatory life sentences for defilement endure the Sexual Offences Act remains lawful. The Court strictly affirmed that trial Court must apply the prescribed sentences and dismissed Law Court attempts to convert life sentences into fixed term sentences. This Court is bound by the Supreme Court decision in the Manyeso Case and the import of it is that the 30 years sentence is unlawful and the same shall be reviewed and substituted with a lawful sentence of life imprisonment. Orders accordingly. DATED AND DELIVERED AT ELDORET VIA CTS ON 26TH JUNE 2026.……………………….…………..R. NYAKUNDIJUDGE