https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1060

SWK v Republic (Criminal Appeal 21 of 2018) [2026] KECA 1060 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 1060 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 21 of 2018 K M'Inoti, S ole Kantai & A Ali-Aroni, JJA May 15, 2026 Between SWK Appellant and Republic Respondent ((Appeal from the judgment of the High Court of Kenya at Nyeri (Mativo, J.) dated 23rd March 2016 in HCCR.A. No. 107 OF 2013) Judgment 1.This is the appellant’s (Sylvester Wanjau Kariuki’s) second appeal after the High Court of Kenya at Nyeri (Mativo, J.), dismissed his first appeal on 23rd March 2016. The first appeal arose from appellant’s conviction and sentence to consecutive sentences of 30 and 20 years imprisonment by the Chief Magistrate’s Court at Meru for two counts of the offence of incest contrary to section 20(1) of the Sexual Offences Act, 2006. 2.The particulars of the first count stated that in January 2012 at Waka area in Nyeri County, the appellant caused his penis to penetrate the vagina of NW, a female who to his knowledge was his step-daughter. The particulars of the second count were that in July 2012 at the same place as in the first count, he caused his penis to penetrate the vagina of MWW, a female who to his knowledge was his step-daughter. 3.Both counts had alternative charges of committing an indecent act with a child, the ages of the victims being 14 years in the alternative charge to count 1 and 9 years in the alternative charge to count two. The particulars stated that the appellant intentionally and unlawfully touched the vaginas of both NW and MWW. 4.After the appellant pleaded not guilty to the charges, the prosecution called six witnesses to prove its case. 5.NW (PW1) testified that in January 2012, on an unknown date but a Sunday, the appellant called her into the table room while her mother was ill and sleeping in the bedroom. He blocked her mouth with his hand, removed her clothes and his and proceeded to insert his penis into her vagina. He threatened to beat her if she informed anyone. At the time she testified, NW was aged 14 years and in class 8. 6.About one week later, she informed her mother about the incident as the mother was going to the hospital. PW1 accompanied her and she was examined in hospital for HIV/AIDS. She tested negative and was asked to go back after three months, when she again tested negative. The matter was not reported to the police because the mother died shortly thereafter on 16th July 2012. 7.After the death of the mother, PW1 and MWW (PW2) went to live with their grandmother. On 31st July 2012, the appellant sent an SMS to the grandmother, asking her to arrange for PW1 and PW2 to visit a VCT and get drugs. PW1 informed the grandmother that the reason for the SMS was because the appellant had had sex with her. On her part, PW2 also informed the grandmother that the appellant had sex with her. That is when the grandmother reported the matter at Giakanja Police Station. 8.PW1 and PW2 were then given P3 Forms and were examined at Nyeri Provincial General Hospital where the P3 Forms were completed. Subsequently the appellant was arrested and charged with the offence. 9.PW2 was 10 years old and in class 4 when she testified, and after a vior dire the court allowed her to give unsworn testimony. Her evidence was that in July 2012, on a date she did not know, but when her mother was still alive and bedridden, the appellant called her into the kitchen and locked the door. He placed her on a chair, blocked her mouth with his hand and removed her pants. Then he inserted his penis into her vagina and when he was done, he asked her to go away and tell no one. 10.GMG (PW3) testified that she was at home with her mother i.e. the grandmother to PW1 and PW2 on 31st July 2012 when the latter received an SMS from the appellant asking her to take PW1 and PW2 to a VCT for drugs. The message read “W, W wape hosi, wape VCT waanze dawa.” She read the message for the mother who asked PW1 and PW2 whether they had had sex with the appellant, to which they answered in the affirmative. The evidence of the grandmother, NWG (PW4), was similar to that of PW3. 11.Dr. Lucille Niyinikunda (PW5) testified on behalf of her colleague at Nyeri Provincial General Hospital, Dr. Peter Muriithi who filled the P3 Forms for PW1 and PW2. As regards PW1, PW5 testified that when she was examined, it was found that her hymen was broken and results for HIV were equivocal and not conclusive. The final results had not been received for samples that had been sent to Nairobi. For PW2, the witness testified that her hymen was broken and at the time of filling the P3 Form her HIV results had not been received from Nairobi. 12.PC Robert Ochieng (PW6) was the investigating officer and testified on how the offence was reported to the police, the issuance and completion of the P3 Forms and the arrest of the appellant. 13.Upon being put on his defence, the appellant elected to give sworn defence but called no witnesses. The gist of his defence was that he was married to the mother of PW1 and PW2 and that he lived with her and the children for slightly over a year, and then she passed on. He admitted sending the SMS to PW4 but explained that he wanted the PW1 and PW2 tested after their mother died of HIV/AIDS, with which he himself was infected. He added that it was after he sent the SMS that the case against him was preferred. 14.As earlier stated, the trial court convicted the appellant and sentenced him to twenty years imprisonment for count one and thirty years imprisonment for count two, the sentences to run consecutively. The appellant was aggrieved and lodged a first appeal in the High Court in which he contended that the prosecution did not prove its case beyond reasonable doubt. That appeal was dismissed by the High Court on 23rd March 2016, leading to the appellant preferring this second appeal. 15.In this second appeal, the appellant faults the High Court on three grounds, in which he asserts that it erred by failing to:i.hold that the procedure prescribed by section 19 of the Oaths and Statutory Declarations Act was not complied with;ii.hold that penetration was not proved by medical evidence beyond reasonable doubt; andiii.Take his defence into account. 16.On the first ground of appeal, the appellant, relying on his undated written submissions, submitted that the evidence of PW2 was unsworn in violation of the Oaths and Statutory Declarations Act, full of inconsistencies and material contradictions and did not disclose the offence of defilement. It was contended that PW2’s evidence was contradictory because she testified that the appellant defiled her in the kitchen and thereafter, she went to the kitchen to wash things. In the appellant’s view this implied there were two kitchens, in which case the witness was lying because there was only one kitchen. He added that PW2 stated that she was defiled on 31st July 2012, yet the evidence showed that by that date, she had already gone to stay with the grandmother. The appellant further submitted that PW2’s evidence, which was not sworn, was not corroborated as it ought to have been. 17.Turning to the second ground on proof of penetration, the appellant submitted that the fact that PW1’s and PW2’s hymens were broken was not evidence of defilement and that the hymen can be broken in many ways other than penile penetration. He contended that the conclusions of the two courts below were based on speculation and that the length of the time it took for PW1 and PW2 to report the defilements showed that the case against him was fabricated. 18.It was also the appellant’s submission that the medical evidence did not indicate the age of the injuries sustained by PW1 and PW2 and therefore did not connect the injuries to the time of the alleged offences. In support, he relied on the decision of the High Court in Ben Mwangi v. Republic, HCCr. App No. 471 of 2001. The appellant also contended, relying on Benjamin Mugo Mwangi & Another v. Republic [1984] KECA 77 (KLR), that the High Court erred in upholding his conviction based on uncorroborated evidence of PW1 and PW2. 19.Lastly, on the third ground of appeal, the appellant submitted that the two courts below did not properly consider his defence before rejecting it, and that if they had, they would have concluded that the case against the appellant was fabricated. He contended that his SMS message was not evidence that he had defiled PW1 and PW2 but was intended to have them taken for HIV/AIDS test as their mother had died of the same disease. 20.Mr. Naulikha for the respondent opposed the appeal, relying on written submissions dated 29th September 2025. Counsel submitted that the proceedings were conducted regularly in accordance with the law and that the prosecution proved its case against the appellant beyond reasonable doubt. He argued that penetration was adequately proved. Relying on the definition of the term in section 2 of the Sexual Offences Act, it was contended that the offence is committed even by partial insertion of one persons’s genitals into another’s and that the evdience of penetration was proved by PW1 and PW2 and corroborated by medical evidence. 21.Regarding compliance with the Oaths and Statutory Declarations Act, the respondent submitted that section 19 of the Act allows the court to receive unsworn evidence of a child of tender years if the child does not understand the nature of the oath and that in this case the court allowed PW2 to give unsworn evidence after conducting a voir dire. 22.Lastly, as regards consideration of the appellant’s defence, it was submitted that the defence consisted of mere denials and in material particulars confirmed the evidence of PW1 and PW2 such as that the appellant was living with their mother who at the material time was sickly. The respondent maintained that the appellant’s defence did not displace the prosecution case. 23.We have carefully considered this appeal. By law, being a second appeal, it is restricted to questions of law only. All questions of fact have been settled by the two courts below. The approach of the Court in a second appeal was stated as follows in M’Riungu v. Republic [1983] KLR 455“where a right of appeal is confined to question of law, 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 fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law.” 24.On the appellant’s contention that there was no compliance with the Oaths and Statutory Declarations Act, we note that PW1 was 14 years old at the time she testified while PW2 was 10 years old. Whether a child is one of tender years is always left to the good sense of the court and as a general rule, a child of 14 years or below is considered a child of tender years. (See Kibageny v. Republic [1959] EA 92 and Patrick Kathurima v. Republic [2015] KECA 539 (KLR)). The trial court correctly treated both PW1 and PW2 as children of tender years and conducted a voir dire before receiving their evidence. In respect of PW1, the court found that she understood the nature of the oath and allowed her to give sworn evidence. For PW2, the court found that she was possessed of sufficient intelligence and understood the duty to tell the truth, but did not appreciate the nature of the oath. Accordingly, the Court received her unsworn evidence. Both PW1 and PW2 were duly subjected to cross-examination. 25.Section 19(1) of the Oaths and Statutory Declarations Act allows reception of unsworn evidence from children of tender years in the following terms:19.(1)Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section. 26.Accordingly, we do not find any contravention or violation of the Oaths and Statutory Declarations Act in the manner in which the trial court conducted the proceedings. 27.The appellant also alleges that the evidence of PW2 was riddled with inconsistencies and contradictions. On this issue, the question always turns on the nature of the alleged contradictions and whether they are fundamental or minor contradictions that would be expected in testimony given after a lapse of time. In Joseph Maina Mwangi v. Republic, CR, APP. No. 73 of 1993, this Court held as follows:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 of Criminal Procedure Code viz. whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.” 28.Similarly, in Philip Nzaka Watu v Republic [2016] eKLR, the Court reiterated as follows:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 29.Having carefully reviewed the record, we do not perceive any contradictions or inconsistencies of a nature or magnitude that would justify interference with the concurrent findings of the two courts below. 30.As regards whether the prosecution proved penetration beyond reasonable doubt, we note that beyond the evidence of PW1 and PW2 which the two courts below accepted, the medical evidence confirmed defilement. There was no plausible evidence on record how both PW1 and PW2 would have lost their hymens other than in the manner they explained, which the medical evidence backed. 31.We also note that decisions like Benjamin Mugo Mwangi & Another v. Republic (supra) which the appellant relied upon to contend that he could not be convicted on the uncorroborated evidence of PW1 and PW2, ante-date the Sexual Offences Act, 2006 and do not presently represent the correct statement of the law. In Jacob Odhiambo Omumbo v. Republic [2008] KECA 315 (KLR), this Court held as follows:“In this case, the evidence of Meshack the clinical officer confirmed that there was penetration. The two courts below accepted this evidence, as well as the evidence of PA that she was defiled by the appellant. Though PA’s evidence was that of a child of tender years, the court can convict on it by virtue of the proviso to section 124 of the Evidence Act cap 80 Laws of Kenya, as amended by Act No 5 of 2003.” (Emphasis added). 32.In accepting the evidence of PW1 and PW2, the trial court reasoned as follows:“The complainant children were the only witnesses to the acts of which the accused was charged with. But the court is satisfied that they were truthful witnesses and they gave an accurate and honest account of what transpired. Their evidence is corroborated by the medical evidence.” 33.Lastly, as regards consideration of the appellant’s defence, we find from the record that both courts below duly considered it but were not satisfied that it displaced the prosecution’s case. There is no merit in the contention that the trial and the first appellant courts ignored the appellant’s defence. 34.For the foregoing reasons, we do not find any merit in this appeal and the same is hereby dismissed. It is so ordered. DATED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY, 2026.K. M’INOTI.....................................JUDGE OF APPEALS. ole KANTAI.....................................JUDGE OF APPEALA. ALI-ARONI.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar