https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7218

Wanjiru v Republic (Criminal Appeal E152 of 2025) [2026] KEHC 7218 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7218 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E152 of 2025 DR Kavedza, J May 26, 2026 Between James Kinyanjui Wanjiru Appellant and Republic Respondent (Being an Appeal against the original conviction and sentence delivered on 24th September 2025 by Hon. A. Mwangi (CM) at Kibera Chief Magistrate’s Court, Sexual Offences Case No. S.O E067 of 2024 Republic vs James Kinyanjui Wanjiru) Judgment 1.The appellant was charged and, after full trial convicted by the Subordinate Court of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 14th day of April 2024, at Dagoretti Sub-County within Nairobi County, the appellant intentionally caused his penis to penetrate the vagina of MWM a child aged 13 years. He was sentenced to serve fifteen (15) years imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3.This is the first appellate court and in Okeno v R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court, but bearing in mind that it never saw the witnesses testify. 4.The complainant PW1 testified she was born on 26th December 2010 and aged 13 years (as confirmed by her birth certificate). She testified she knows the appellant as Boyoyo who operated a bodaboda motorcycle. She testified that on the material day as she was going to her cousin’s birthday, she met the appellant while with her cousin S. They met the appellant who stopped her and asked her to accompany him, promising to buy her chips and later take her home. 5.She accepted the offer and they left together, while her cousin had left them talking. She states the appellant took her to his cousin’s house, which is near his house. She states that the house was made of iron sheets, and had an upstairs room where the appellant took her. The appellant then removed her black jumper, green trousers and underpants then proceeded to insert his penis to her vagina. After the act, she dressed up and left the house leaving the appellant behind. 6.She further stated she feared going home as she feared she would be beaten by her parents. She met a boy called Njenga who took her to his home where she took supper and spent the night on a seat. The following day, she left the home but loitered in the village until 6pm. She went back to Njenga who escorted her to the bypass but she still didn’t go home out of fear. She finally went to his father’s workplace and spent the night there. 7.She states that the following morning, she proceeded to the bypass and came across her cousin and her parents searching for her and explained to them what had transpired and was escorted to a hospital in Mutuini and later to the Police Station where she was issued with a P3 form. Dring cross-examination, she states that the appellant was living in his cousin’s house. 8.PW2, MWM, sister to PW1 testified that on the material day, she was in her uncle’s house and her friends informed her that they had seen the minor, her sister, boarding Boyoyo’s motorcycle and when PW1 didn’t return that night she informed her parents. The following day, her parents went to the Chief’s Camp and they later received information that PW1 was spotted at bypass and requested not to punish her. Her mother wanted to know if PW1 and the appellant got intimate. She was later informed that the PW1 was taken to hospital and she went to see her and later went to Mutuini Police Station to record her statement. 9.PW3, GMK, testimony corroborated that of PW1 and PW2. He states that after learning the disappearance of PW1, he left for the Chief’s Camp to report the matter with the company of S and PW2. They met with the appellant coming from the Police Station and S started crying upon seeing the appellant and stated he was the one who carried PW1. He pleaded with the appellant to return his daughter but he denied knowing her whereabouts. He testified that the appellant dishonoured the Chief’s summon and even switched off his phone. When PW1 was finally traced she narrated the ordeal to her mother. 10.During cross-examination, he stated that PW1 took them to the appellant’s house which has a lower and upper floor and identified it as the place where the minor was defiled. 11.PW4, Dr. Deborah Nyaga attached at Mutuini Hospital produced the medical documents of the minor. Upon medical examination, she states the minor had bruise on the posterior fourchette and there was reddening of the vagina indicating proof of penetration. She further states no other injuries were noted; no spermatozoa she was also tested for pregnancy which was negative and HIV and syphilis free. During cross-examination, she states presence of spermatozoa is not the only proof of defilement. 12.PW5, PC Doughins Ombati testimony corroborated that of PW1, PW2 and PW3. He states he was able to arrest the appellant and record the statements of the witnesses. During cross-examination, he states that he used to see the appellant riding motorcycles. 13.In his defence, the appellant (DW1) did not deny the allegations and neither did he challenge the totality of the prosecution’s case. He only stated he doesn’t work on Sundays and that his cousin’s door and his face each other. 14.After a full trial, the appellant is accordingly found guilty as charged. 15.The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 16.To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means,"the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 17.Further, section 8(1) and (3) of the Sexual Offences Act, No. 3 of 2006 provides thus:8.Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 18.On the element of age, the complainant, PW1, testified on oath that she was born on 26th December 2010 as confirmed by her birth certificate which was produced in evidence by the Investigating Officer, PW5. At the time of the alleged incident, she was 13 years old. The prosecution therefore established beyond reasonable doubt that the complainant was a child under the age of eighteen years, as required by section 8(1) of the Sexual Offences Act. 19.On the element of penetration, PW1 gave clear, direct and cogent evidence in her sworn testimony. She stated that the appellant approached her with the offer of buying her chips then taking her home. The appellant then took the minor to his cousin’s house on the upper floor and no one else was in the house. The appellant then removed her clothes, the minor was wearing a black jumper, green trouser and underpants. He then proceeded to defile her. PW4, a Clinical Officer produced the treatment notes, which recorded bruise on the posterior fourchette and reddening of the vagina which was proof of penetration. No alternative explanation for the injury was advanced or supported by the evidence. The appellant didn’t rebut this evidence. The trial court was satisfied that penetration was proved beyond reasonable doubt. 20.On the identity of the perpetrator, PW1 was firm, consistent and unshaken in her identification of the appellant as the person who defiled her. She knew him well as Boyoyo a bodaboda operator. She pointed him out in court as the appellant. She gave a detailed account of the events leading to and including the act of defilement, which occurred at the appellant cousin’s house. There was no suggestion of mistaken identity, and her evidence on identification withstood thorough cross-examination. The appellant was positively identified by the complainant as the perpetrator. 21.Upon review, this court concurs. The appellant did not rebut the allegations neither challenged it. He only states that he doesn’t go to work on Sunday. This version is wholly implausible and unsupported by any evidence. It raises no reasonable doubt against the cogent, consistent, and mutually corroborative prosecution case, which was proved beyond a reasonable doubt. 22.The prosecution therefore proved all the essential elements of defilement contrary to section 8(3) of the Sexual Offences Act beyond reasonable doubt. The appellant’s defence raised no reasonable doubt. The conviction is affirmed. 23.On sentence, the appellant was sentenced to serve (15) years’ imprisonment. The record shows that the trial court considered the Pre-sentence Report, the appellant’s mitigation and the fact that he was a first offender before arriving at that sentence. 24.However, I find that the Sexual Offences Act provides for sentence not less than 20 years under section 8 (3) where the victim is between the age of 12 and 15 years. In this case, the victim was 12 years old. From the foregoing, I find that the trial court imposed an improper sentence. 25.In the premises, the sentence of fifteen years is substituted with an enhanced sentence of twenty (20) years. Sentence to run the date of conviction and computation less seven (7) months spent in remand custody pursuant to section 333(2) of the Criminal Procedure Code.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF MAY, 2026..............................D. KAVEDZAJUDGEIn the presence of:Appellant - Present.Mr. Mutuma for the Respondent.Karimi - Court Assistant.