https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10849

SKW v Republic (Criminal Appeal E068 of 2024) [2026] KEHC 10849 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10849 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Appeal E068 of 2024 KL Kandet, J July 17, 2026 Between SKW Appellant and Republic Respondent (Being an appeal from the Judgment delivered by Hon. R. Oraro (Resident Magistrate) in Criminal Case No. S.O 23 of 2018 at the Chief Magistrate's Court at Kiambu) Judgment 1.The Appellant, SKW, was charged before the Chief Magistrate's Court at Kiambu with the offence of Defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 20th day of April 2018, at [Particulars Withheld] area, Kiambaa Sub-County within Kiambu County, he intentionally caused his penis to penetrate the anus of B.N., a child aged seven (7) years. He was further charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the sexual offences Act No.3 of 2006, in that he intentionally and unlawfully touched the anus of B.N, a child aged 7 years with his penis. 2.The Appellant was arraigned before the trial court on 24th April 2018, where the charge was read and explained to him in a language that he understood. He denied the charge and a plea of not guilty was entered. The matter was thereafter fixed for mention for purposes of pre-trial directions. 3.During the preliminary stages of the proceedings, concerns were raised regarding the Appellant's mental status. Consequently, the trial court directed that he be subjected to psychiatric examination at Mathare National Teaching and Referral Hospital. A mental assessment report dated 28th August 2018 found the Appellant unfit to stand trial and the hearing was deferred pending further review. 4.The matter thereafter came up for mention on several occasions to ascertain the Appellant's mental condition. Upon receipt of a subsequent psychiatric report certifying that he was fit to stand trial, the learned trial magistrate directed that the hearing proceeds. 5.The prosecution ultimately called four (4) witnesses in support of its case. Upon the close of the prosecution case, the learned trial magistrate ruled that the prosecution had established a prima facie case against the Appellant and placed him on his defence. The provisions of Section 211 of the Criminal Procedure Code were duly explained to him and he elected to give an unsworn statement without calling any witness. 6.Having considered the entire evidence placed before it, the trial court found the Appellant guilty of the offence charged, convicted him accordingly and sentenced him in accordance with the provisions of Section 8(2) of the Sexual Offences Act. 7.Aggrieved by both the conviction and sentence, the Appellant preferred the present appeal. Upon obtaining certified copies of the proceedings, he amended his grounds of appeal and challenged the decision of the trial court on eight grounds:a.That the learned trial magistrate erred in both law and fact in finding a conviction for not considering that the accused person was affected by mental disability during and before the act.b.That the learned trial magistrate erred in both law and fact by convicting on incurably defective charge.c.That learned trial magistrate erred in law by convicting the appellant on uncorroborated evidenced.That the learned trial magistrate erred in both law and fact by basing the conviction on unproved penile penetration / medical evidence.e.That the learned trial magistrate erred in law and fact by failing to consider the ingredients were not proved beyond reasonable doubt.f.That the learned magistrate erred in both law and fact of failing to observe the period spent in custody.g.That the learned trial magistrate erred in both law and fact by finding conviction based on contradictory evidence.h.Whether there was sufficient evidence to sustain the conviction may this court allow my appeal and set the appellant at liberty. Evidence Before the Trial Court 8.PW1 was the complainant, a minor child. Before receiving his evidence, the learned trial magistrate conducted a voir dire examination and found that although he was of tender years, he possessed sufficient intelligence and understood the duty of speaking the truth. The court therefore permitted him to testify on oath. 9.PW1, a Class 4 pupil at St. [Particulars Withheld], testified that on the evening of 20th April 2018, at around 7:00 pm, his mother left him at home with his older brother (the Appellant/Accused herein) and three of his friends, John Kahura, Stephen Njenga, and Flaje as she went to the shop. The Appellant proceeded to remove his own clothes and those of PW1, and put his ‘kitu ya kukojoa’ in PW1’s anus. The friends managed to run away. The mother caught the Appellant in the act and asked him what he was doing, to which the Appellant insulted her, destroyed the windows and ran away. Members of the public managed to arrest him. PW1 further testified that he was taken to Karuri hospital and also went to Karuri police station. 10.During cross-examination, PW1 disclosed that the appellant had defiled him before this incident. He did not report the earlier incident because the appellant had threatened to kill him. 11.PW2, Joyce Wairimu, the complainant's mother, testified that she had four children, the Appellant being her second born while the complainant was her youngest child. She testified that, on the material day, she went to the shop and left the appellant and the complainant at home. When she got home, she inquired about the whereabouts of the complainant only for the accused to inform her he (the complainant) was not home. The appellant was seated with his back to the door. His legs were apart. When the appellant stood up, PW2 saw the complainant, whose back was on the chair and he was looking at the roof. PW2 asked the appellant what he was doing, to which the appellant beat her. The appellant had no clothes on and the complainant’s trousers had been removed and reached the thighs. The appellant started chasing the complainant. PW1 and PW2 screamed, catching the attention of the public. The complainant said the appellant ‘alikuwa ananifanyia tabia mbaya’. PW2 took the complainant to hospital and was issued with a P3 and PRC form. Members of the public chased the appellant and he was later arrested. 12.On cross examination, she stated that she did not take the complainant to hospital the same day as it was at night. 13.PW3, Richard Munene, a Clinical Officer working at Karuri Level 4 Hospital, examined the complainant on 27.04.18. Upon examination, he observed no visible injuries around the anal region. However, the complainant complained of a lot of pain during examination, which according to PW3 was consistent with an attempt to introduce something into the anus. He produced the P3 Form, PRC Form and treatment notes as exhibits. 14.During cross-examination, PW3 confirmed that the appellant was not tested. 15.PW4, No.89978 Pc. (a) Lelesit, was the Investigating Officer attached to Karuri Police Station. She testified that upon receiving the complaint she commenced investigations, recorded witness statements and facilitated the complainant's medical examination. She confirmed that the complainant was 7 years old at the time of the incident. She produced a birth notification. 16.At the close of the prosecution case, the learned trial magistrate found that a prima facie case had been established against the Appellant and consequently placed him on his defence. The Appellant elected to give an unsworn statement and did not call any witness in support of his defence. 17.In his defence, DW1, the Appellant, denied committing the offence. He stated that on the material day, his mother, PW2, found him in the house with his brother and friends. That his mother asked him what he was doing to the complainant and DW1 said nothing was going on. DW1 threw his mother to the wall, damaged the TV and cupboard and left the house. The caretaker came after him and the neighbours came with pangas. He was taken to Karuri Police Station. He alleged that there was a case in Kikuyu Law Courts where his mother had assaulted his father. DW1 further alleged that because of his mental disability, PW2 had decided to put all this on him. 18.Upon considering the prosecution evidence alongside the Appellant's defence, the learned trial magistrate found that the prosecution had proved the charge beyond reasonable doubt, rejected the defence, and convicted the Appellant under Section 215 of the CPC. Being dissatisfied with both the conviction and sentence, the Appellant preferred the present appeal. Appellant's Submissions 19.The Appellant filed amended grounds of appeal together with written submissions in support thereof. 20.Ground One: His primary complaint was that the learned trial magistrate failed to appreciate that he was suffering from a mental illness before and during the commission of the alleged offence and throughout part of the trial process. He submitted that the evidence tendered by the prosecution itself demonstrated that he had been undergoing treatment at Mathare National Teaching and Referral Hospital and that a mental assessment report had at one point declared him unfit to stand trial. He therefore argued that Sections 166 and 167 of the Criminal Procedure Code ought to have been invoked instead of subjecting him to an ordinary criminal trial. 21.Ground Two: The Appellant submitted that the charge sheet was incurably defective. He argued that whereas he had been charged with defilement contrary to Section 8 of the Sexual Offences Act, the evidence adduced before the trial court related to anal penetration. According to him, the evidence presented materially differed from the particulars contained in the charge sheet and therefore occasioned prejudice to his defence. He relied on the decision in Yongo v Republic (1982-88) KLR 162 in support of that proposition. 22.Ground Three: The Appellant also faulted the trial court for relying on what he termed uncorroborated evidence of the complainant. He argued that the learned trial magistrate failed to warn himself of the dangers of relying solely on the evidence of a minor and did not properly invoke Section 124 of the Evidence Act before convicting him. 23.Ground Four: The Appellant further contended that the prosecution failed to prove penetration beyond reasonable doubt. He submitted that the Clinical Officer did not find any visible injuries, tears or discharge and merely testified that the complainant experienced pain during examination. It was his submission that such evidence was insufficient to establish penetration as contemplated under the Sexual Offences Act. 24.Ground Five: The Appellant additionally argued that the prosecution failed to establish all the ingredients of the offence beyond reasonable doubt. He maintained that there was no scientific evidence linking him to the alleged offence and that the medical evidence neither confirmed penetration nor connected him to the injuries allegedly sustained by the complainant. 25.Ground Six: On sentence, the Appellant submitted that the learned trial magistrate failed to comply with Section 333(2) of the Criminal Procedure Code by neglecting to consider the period he had spent in lawful custody before conviction. He urged this Court to take that period into account in the event the appeal on conviction did not succeed. 26.Ground Seven: It was further submitted that the prosecution evidence contained numerous contradictions touching on the complainant's age, the dates when the matter was reported to the police, the dates of medical examination and the sequence of events following the alleged offence. According to the Appellant, these inconsistencies went to the root of the prosecution case and ought to have been resolved in his favour. 27.Ground Eight: Finally, the Appellant implored the Court to consider that he had since undergone rehabilitation while in prison, had reformed, expressed remorse and prayed that the Court exercise leniency. He consequently urged the Court to allow the appeal, quash the conviction, set aside the sentence and order his immediate release. Analysis 28.This being a first appeal, this Court is under a duty to subject the entire evidence tendered before the trial court to a fresh and exhaustive examination and thereafter arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. That duty was succinctly stated in Okeno v Republic [1972] EA 32, where the Court of Appeal held that:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. Republic (1957) E.A. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. R. (1957) E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, See Peters V. Sunday Post, (1958) E.A. 434).” 29.The Court of Appeal also set out the duty of a first appellate court in the case of Abok James Oderat/a AJ Odera &Associates -V- John Patrick t/a Machira &Co. Advocates [2013] Eklr, where it stated as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 30.Guided by those well-established principles, I have carefully reconsidered the entire record of appeal, the judgment of the trial court, the amended grounds of appeal, and the written submissions by the Appellant. In my respectful view, the issues falling for determination are:a.Whether the Appellant was mentally impaired at the time of the offence;b.Whether the charge sheet was defective;c.Whether the ingredients of the offence were proved beyond reasonable doubt;d.Whether the alleged contradictions were material; ande.Whether the sentence imposed calls for interference. 31.Whether I shall now proceed to consider each of those issues sequentially in light of the evidence on record, the applicable statutory provisions and the authorities cited by the parties. 32.The first issue for determination is whether the Appellant's mental condition rendered the trial a nullity or entitled him to the protection afforded under Sections 166 and 167 of the Criminal Procedure Code. The Appellant's argument is that the prosecution evidence itself established that he had previously undergone psychiatric treatment at Mathare National Teaching and Referral Hospital and that the trial court failed to accord due weight to that evidence. 33.The record indeed discloses that concerns were raised regarding the Appellant's mental status during the preliminary stages of the proceedings. Consequently, the trial court ordered that he undergo psychiatric examination. The initial assessment found him unfit to plead and the proceedings were halted pending further medical evaluation. It is therefore evident that the trial court appreciated its obligation to ensure that an accused person is mentally capable of participating in criminal proceedings before allowing the matter to proceed. 34.The record further demonstrates that after undergoing treatment, the Appellant was reassessed and was eventually certified fit to plead and stand trial. It was only after receipt of that subsequent medical opinion that the hearing resumed. In the absence of evidence challenging the later psychiatric assessment, this Court is unable to fault the trial court for proceeding with the hearing. 35.Sections 166 and 167 of the Criminal Procedure Code apply where an accused person is found to have been insane either at the time of trial or at the time of commission of the offence. However, the mere fact that an accused person has previously suffered from a mental illness or has undergone psychiatric treatment does not automatically establish legal insanity within the meaning of those provisions. The burden rests upon the party asserting insanity to place before the court cogent medical or other credible evidence demonstrating that, at the material time, the accused was incapable of appreciating the nature of his acts or distinguishing right from wrong. 36.The Court in LMN v Republic [2026] KEHC 3099 (KLR) held that the defence of insanity is only available where it is demonstrated that, at the time of committing the offence, the accused was incapable of exercising full control of his mental faculties. The Court observed that although the appellant claimed to have suffered from a mental illness, no evidence was adduced to establish that he was mentally impaired when the offence was committed. Consequently, the defence of insanity was found to be inapplicable. 37.In the present case, apart from references made by PW2 regarding previous treatment and the production of earlier medical documents, no expert evidence was tendered demonstrating that on the date of the alleged offence the Appellant lacked criminal responsibility. Equally, the defence did not produce any psychiatric evidence to rebut the subsequent assessment which found him fit to stand trial. Consequently, I find no basis for concluding that the learned trial magistrate misapplied Sections 166 or 167 of the Criminal Procedure Code. 38.The second issue concerns the Appellant's contention that the charge sheet was incurably defective because the particulars referred to penetration whereas portions of the evidence referred to penetration of the anus. The law relating to defective charges is now well settled. Section 134 of the Criminal Procedure Code requires every charge to contain sufficient particulars to inform an accused person of the offence with which he is charged. A charge only becomes fatally defective where it occasions prejudice or fails to disclose an offence known in law. 39.The Court of Appeal in Jason Akumu Yongo v Republic [1983] KECA 79 (KLR) held that not every defect in a charge sheet renders a conviction unsafe. The decisive question is whether the variance between the charge and the evidence occasioned a failure of justice or embarrassed the accused in the conduct of his defence. Likewise, Section 382 of the Criminal Procedure Code expressly provides that no finding or sentence shall be reversed on account of an error or omission unless such error has occasioned a miscarriage of justice. (See also Kamau v Republic [2025] KEHC 42 (KLR)) 40.Having considered the charge sheet alongside the evidence tendered before the trial court, I am satisfied that the Appellant fully understood the nature of the accusation facing him. Throughout the proceedings he actively cross-examined the prosecution witnesses and responded specifically to the allegations levelled against him. At no stage did he apply for amendment of the charge or indicate that he was prejudiced in the preparation of his defence. I therefore find that this ground of appeal is without merit. 41.The third and perhaps most critical issue is whether the prosecution proved the essential ingredients of the offence beyond reasonable doubt. In criminal cases, the burden of proof always rests with the prosecution and never shifts to the accused. This principle, famously stated in Woolmington v Director of Public Prosecutions [1935] AC 462, remains the cornerstone of criminal jurisprudence in Kenya. 42.The prosecution was required to establish beyond reasonable doubt the age of the complainant, the occurrence of penetration as defined under Section 2 of the Sexual Offences Act, and the identity of the perpetrator. Upon independently evaluating the record, I shall now consider each of those ingredients before determining whether the conviction was safe. 43.On the issue of age, the prosecution bore the burden of proving that the complainant was a child within the meaning of the Sexual Offences Act. The evidence before the trial court consisted of the complainant's testimony, the evidence of PW2, who was the complainant's mother, and documentary evidence in the form of the complainant's clinic card. In Edwin Nyambogo Onsongo v Republic [2016] eKLR, the Court stated thus“…………………the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be provoked by documents, evidence such as a 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 victims age, it has to be credible and reliable.” [Own emphasis] 44.Although the Appellant submitted that there were discrepancies regarding whether the complainant was seven or nine years old, the evidence consistently established that he was a minor well below the age of eleven years. The slight inconsistency as to the exact age does not, in my view, affect the substance of the charge since the documentary evidence sufficiently established that the complainant was a child. I therefore find that the prosecution satisfactorily proved the age of the complainant. 45.The next ingredient is whether penetration was proved. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another. It is now settled that even the slightest penetration is sufficient and that medical evidence, though desirable, is not the only means by which penetration may be proved. In the case of Bassita Hussein vs Uganda, Supreme Court Criminal Appeal no. 35 of 1995, the court held that penetration may be proved by direct or circumstantial evidence. 46.The complainant gave direct evidence describing the unlawful sexual act committed against him. The trial court, having conducted a voir dire examination, found him competent to testify on oath and thereafter believed his testimony. I have carefully re-evaluated that evidence. The complainant remained consistent that it was the Appellant who subjected him to the sexual act complained of. His evidence was not shaken during cross-examination and there is nothing on record suggesting that he had any reason to falsely implicate his own brother. 47.The Appellant has placed considerable reliance on the medical evidence, arguing that the Clinical Officer did not observe visible injuries, tears or discharge. However, absence of physical injuries is not conclusive proof that penetration did not occur. Medical findings must always be considered together with the entire body of evidence. In this case, PW3 testified that the complainant experienced pain during anal examination and expressed the opinion that such pain was consistent with an attempt to introduce an object into the anus. While the medical findings were not conclusive on their own, they were not inconsistent with the complainant's account. 48.I am equally alive to the provisions of Section 124 of the Evidence Act, which permit a court to convict on the sole evidence of a complainant in sexual offences where the court believes the complainant and records the reasons for such belief. 49.In NLZ v Republic [2025] KEHC 10236 (KLR) the court stated that;“16.The only evidence of the alleged offence is that of the Complainant, a child. The proviso to Section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. (emphasis)17.For a court to convict an accused person of a sexual offence only on the basis of the evidence of the victim, such court must be satisfied that the victim is telling the truth. In its judgment, the trial court was persuaded by the Complainant’s testimony and found no reason why the Complainant, a small child, would fabricate charges against the Appellant with whom she had lived well… 50.The learned trial magistrate expressly found the complainant to be truthful and reliable. Having independently reviewed his testimony, I find no reason to depart from that assessment. The complainant gave a coherent account of the incident, positively identified the Appellant and remained steadfast throughout cross-examination. 51.On the identification of the Appellant as the perpetrator, there is no doubt that the complainant and the appellant are related as siblings, and thus the complainant positively identified the Appellant. 52.The Appellant also challenged the conviction on the basis of alleged contradictions in the prosecution evidence. I have carefully considered each inconsistency pointed out in the amended grounds of appeal. Some relate to the exact dates of medical examination, others concern whether the complainant first went to hospital or to the police station, while others concern whether the complainant was seven or nine years old. In my considered view, these are minor discrepancies naturally expected where witnesses testify from memory about events occurring at different times. They do not go to the root of the prosecution case and do not create any reasonable doubt regarding the identity of the offender or the commission of the offence. 53.The Court of Appeal has consistently held that not every inconsistency is fatal to the prosecution case. Only material contradictions which affect the essential ingredients of the offence are capable of rendering a conviction unsafe. In the present case, the alleged inconsistencies neither displaced the complainant's direct evidence nor undermined the overall credibility of the prosecution witnesses. I therefore reject this ground of appeal. 54.The Appellant further faulted the learned trial magistrate for allegedly disregarding his defence. I have considered the unsworn statement tendered by the Appellant. The defence principally consisted of a denial of the allegations together with the assertion that he had suffered from mental illness. The learned trial magistrate expressly considered that defence but found that it did not displace the strong prosecution evidence. I have reached the same conclusion. While the Appellant had previously undergone psychiatric treatment, there was no evidence demonstrating that he lacked criminal responsibility on the date of the offence. His defence therefore remained a bare denial incapable of raising reasonable doubt. 55.Finally, on sentence, the Appellant submitted that the learned trial magistrate failed to take into account the period spent in custody as required under Section 333(2) of the Criminal Procedure Code. Section 8(2) of the Sexual Offences Act provides:“(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 56.The trial court accordingly imposed the sentence provided by law. In the circumstances, and there being no illegality, impropriety or misdirection in the exercise of the trial court's discretion, I find no basis upon which this Court can interfere with the sentence imposed. This ground of appeal therefore fails. Disposition 57.The Appeal, on both conviction and sentence, is found to be without merit. It is hereby dismissed in its entirety DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn Presence Of:For The AppellantFor The RespondentCourt Assistant:jael