https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11361

Warigia v Republic (Criminal Appeal E075 of 2022) [2026] KEHC 11361 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11361 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E075 of 2022 S Mbungi, J July 24, 2026 Between Paul Chege Warigia Appellant and Republic Respondent (Being an appeal against the conviction of Hon. S.K Nyaga delivered on 2nd December 2022 and sentence by Hon. P.N Maina - CM delivered on 9th December 2022 in Murang’a CM’s Court Case No. SO E028 of 2021) Judgment 1.The appellant herein was charged with the offence of sexual assault contrary to section 5(1)(b) as read with section 5(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 4th day of December 2021 at about 1000hrs at [Particulars Withheld] in Kahuro sub county within Murang’a County, the appellant unlawfully and intentionally manipulated a part of his body namely fingers to penetrate the genital organs, namely vagina of C.M.M, a child aged five years. 2.He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge were that on the 4th day of December 2021 at around 1000hrs at [Particulars Withheld] in Kahuro sub county within Murang’a County, the appellant unlawfully and intentionally caused his index finger to touch the vagina of C.M.M, a child aged five years old. 3.The appellant pleaded not guilty to all the charges and the matter proceeded to full trial. The prosecution called 5 witnesses in support of its case whereas the appellant testified as the only defence witness. Facts at trial 4.PW1 was Mary Wanjiru Irungu, the victim’s mother. She stated that C.M.M was five years old, having been born on 22.08.2016 and produced her birth certificate as exhibit in court. She testified that on 04.12.2021, C.M.M went to visit her grandmother who resided in the same compound with them whereas she went to the shamba. That when she came back home in the evening, she bathed the complainant and soaked her dirty clothes. That C.M.M started complaining of pain while peeing and told her that ‘uncle’ had inserted his fingers in her vagina at the grandmother’s kitchen. That the accused sat on a chair, put the child on top of him as he inserted fingers in her and responded ‘ninaskia utamu’ during the act. That she informed the grandmother and took the complainant to a private hospital, where the doctor informed her that he could not ascertain whether fingers had been inserted into the vagina. She subsequently took the complainant to Muriranjas Hospital on 6th December 2021, where the complainant was diagnosed with a urinary tract infection. On cross examination, she stated that she took the complainant to hospital on 06.12.2021, upon noticing that she was itching herself. That she then reported the incident to the police on the same day. 5.PW2 was C.M.M, the complainant. After voire dire examination by the court, she testified under oath and stated that on the material date, she was in the kitchen with the appellant while her grandparents were at the shop. That the appellant sat on a chair and placed her on his lap. He then inserted his fingers into her anus, stating that he felt good. That she was wearing stockings and a dress at the time, but the appellant did not remove her clothing. She stated that she reported the matter to her mother while her mother was doing laundry. Her mother subsequently bathed her and took her to the hospital. On cross examination, PW2 further testified that the appellant had previously inserted his fingers into her anus twice on prior occasions. That he had threatened her not to disclose the incident, warning that if she told anyone, they would both be taken to the police station. She stated that they reported to the police at 7:00pm. 6.PW3 was KMN, PW2’s father. His testimony was that on 5th December 2021, PW1 informed him that the complainant had been violated by the appellant, who had inserted his fingers into her anus. He immediately informed his father (the complainant's grandfather), and they reported the matter to the police. PW3 testified that he spoke to his daughter, who confirmed that the appellant had inserted his fingers into her private parts. The complainant further disclosed that this was not the first time the appellant had committed such acts, and that was how they ‘played’. He testified that he had known the appellant for approximately two months prior to the incident. The complainant used to refer to the appellant as ‘uncle’. On cross examination, PW3 confirmed that his wife reported the incident to him on the day following the incident. He acknowledged that he did not accompany his wife and daughter to the police station on 4th December 2021 at 7:00 pm. He stated that his daughter had not been treated at the private hospital but was later treated at Muriranjas Hospital on 6th January 2022. 7.PW4 was No. 2xxxx1 PC Dorcas Muchari. She testified that on 07.12.2021, PW1 and PW2 came to the station to report that PW2 had been assaulted by a person well-known to her. That they had filled a P3 form, which she produced in court and she recorded their statements. That the accused used to work at PW2’s grandmother’s home. That on that particular day, while in the kitchen, the accused removed the complainant’s underpants and inserted his fingers in her vagina (private parts). That PW2 started crying in the evening and informed her mother that she felt pain in her private parts. That PW1 informed the grandmother who advised them to seek medical checkup. The minor was taken to a private clinic at [Particulars Withheld] and later on to Muriranjas Hospital, where she accompanied them and the P3 form was filled. That she did not visit the scene. 8.On cross examination, she stated that the offence was reported on 07.12.2021, and that she escorted PW1 and PW2 to the hospital. That the doctor informed them that the hymen was broken. She stated that PW2 informed her that it was not the first time she had been assaulted by the accused person. That the accused threatened her to keep silent, or else they would both be arrested. That the accused was positively identified by the victim as ‘uncle’. She stated that the grandmother had rescinded to participate in the case since she was old. 9.PW5 was Peter Mbogo, a clinical officer at Muriranjas Hospital. He testified that the date of the alleged offence was on 04.12.2021. That the complainant reported the case on 06.12.2021 and he filled the P3 form on 07.12.2021. That the complainant alleged she had been sexually assaulted by a person known to her, and the accused had inserted his fingers into her vagina on 04.12.2021 at approximately 10:00 am. PW5 testified that during examination, the child was irritable and exhibited anxiety. The approximate age of the injury was estimated to be three years. The probable type of weapon was a penetrative object, and the degree of injury was grievous harm. He observed that the hymen was broken, with reddened vaginal walls. Laboratory results revealed that the complainant was HIV-negative, had a urinary tract infection (UTI), and a high vaginal swab showed no spermatozoa. She was not pregnant. PW5 filled and signed the P3 form, which he produced in court together with the treatment notes. On cross examination, he stated that at the time of examination, PW2 had changed clothes and was bathed. He conceded that the hymen can be broken by causes other than sexual intercourse and that insertion of fingers would cause reddening. There were bruises on the vaginal walls which caused the infection. He stated that PW2 could have tolerated the pain for three days since she was anxious. 10.The trial court considered the evidence adduced and found that the prosecution had established a prima facie case against the accused and accordingly placed him on his defence. Defence Case 11.DW1 was Paul Chege Warigia, the accused. He gave an unsworn testimony in his defence and testified that he had developed a friendly relationship with the complainant's father, and they lived together like a family. However, the relationship soured, while intoxicated, came and insulted them. The following day, the appellant reported this incident to the complainant's grandmother. The grandmother informed him that the complainant's father had been chased away from the home. The appellant contended that there were ongoing issues between himself, PW1 and PW3. That these issues arose because he refused to give them items belonging to his employer, which they had demanded from him. It was his assertion that this disagreement formed the basis for the fabrication of the charges against him. That the complainant had been coached to lie about the incident. He further argued that the complainant had not removed her clothes during the alleged incident, as she was wearing a dress and stockings, making it implausible that any penetration could have occurred. He denied ever committing the offence and maintained that he had no grudge against the child that would motivate him to sexually assault her. 12.Upon considering the evidence adduced at the trial court, the trial magistrate convicted and sentenced the accused to 15 years in prison. 13.Aggrieved by the decision of the trial court, the appellant lodged the present appeal vide a memorandum of appeal dated 15th December 2022, and thereafter filed amended grounds of appeal, dated 6th March 2024, citing the following four grounds:a.That the learned trial magistrate erred in law and fact to convict him while relying on evidence of a single witness without considering that the same was fully tinted with a lot of doubts.b.That the learned trial magistrate erred in law and fact by basing his conviction on medical evidence which was inclusive.c.That the learned trial magistrate erred in both matters of law and fact to base his conviction on contradicting and uncorroborated prosecution evidence.d.That the learned trial magistrate erred in both law and fact to shift the burden of proof to the accused person, and reject his defence without cogent reason to do so. 14.Consequently, the appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. 15.The appeal was canvassed by way of written submissions. On record are submissions dated 6th March 2024 filed by the appellant, and submissions dated 17th March 2025, filed by the respondent; both of which this court has carefully considered. Appellant’s submissions 16.The appellant submitted that the conviction was unsafe as the trial court relied principally on the evidence of the complainant, a child of tender years, without subjecting the same to the requisite caution and scrutiny. He argued that the complainant was a single identifying witness and that her evidence required careful evaluation, particularly because she referred to the appellant as ‘uncle’ and was said to have called other male workers by the same description. He relied on Maitanyi v Republic and Kariuki Njiru & 7 others v Republic on the need for careful scrutiny of identification evidence. 17.The appellant averred that he was framed due to a disagreement between himself and the complainant’s parents, and that the complainant had been coached to implicate him. He contended that the prosecution failed to prove that he was the perpetrator, and that the trial court did not adequately consider the possibility of error or mistaken identity. 18.On penetration, the appellant submitted that the prosecution evidence was inconsistent and did not prove the offence beyond reasonable doubt. He argued that the complainant stated that the appellant inserted his fingers in her anus and not her vagina, and that she further testified that her clothes were not removed during the alleged incident. He therefore contended that the medical evidence did not corroborate the complainant’s account. 19.The appellant also challenged the medical evidence, submitting that it was inconclusive. He pointed to the evidence of the medical officer that the approximate age of the injuries was three years, yet he had only worked for the complainant’s grandparents for about two months. He further submitted that no spermatozoa, bruises, blood or discharge were noted, that the child had a urinary tract infection, and that the hymen could have been broken by causes other than sexual assault. 20.Lastly, the appellant submitted that the investigations were shoddy, as the investigating officer did not visit the scene and the appellant was not taken for medical examination. Respondent’s Submissions 21.On the appellant’s contention that the trial court relied on the evidence of a single witness, the respondent relied on the proviso to section 124 of the Evidence Act and submitted that, in sexual offences, the court may convict on the evidence of the complainant alone where it records reasons for believing that the complainant was truthful. It was further submitted that, in any event, the complainant’s evidence was corroborated by the evidence of her mother, father and the medical officer, who confirmed that the complainant had a broken hymen, injuries on the vaginal walls and an infection. 22.The respondent further submitted that the alleged contradictions in the prosecution case were not material. That although the complainant referred to the appellant inserting his fingers in her anus, the evidence as a whole showed that she reported that the appellant inserted his fingers in her private parts, and that the same account was given to her mother, the medical officer and the investigating officer. The respondent prayed for the court to take into account the complainant’s tender age, she being a child of about five years at the time of the incident. 23.On the medical evidence, the respondent submitted that the appellant’s argument that the medical findings were inconclusive was without merit. It was contended that the record, the P3 form and the evidence of the medical officer showed that the complainant was examined within a short period after the incident and that the medical findings supported the prosecution case. Analysis and Determination 24.This being the first appellate court, it is guided by principles set out by the court of appeal in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the court stated as follows:“The duty of the first appellate court is to analyze and re-evaluate on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, conclusions as those of the lower court. It may rehash those that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 25.I have looked at the amended grounds of appeal, the rival submissions filed by the parties, the lower court proceedings and the trial court’s judgment. 26.The following key issues arise for determination:i.Whether the prosecution proved the charge of sexual assault against the appellant beyond reasonable doubt;ii.Whether the conviction was safely founded on the evidence of the complainant, the medical evidence and the other prosecution witnesses;iii.Whether the trial court properly considered the appellant’s defence without shifting the burden of proof. Issue I: Whether the prosecution proved the charge of sexual assault beyond reasonable doubt 27.The appellant was charged with sexual assault contrary to section 5(1)(b) as read with section 5(2) of the Sexual Offences Act. Section 5(1) of the Act criminalizes the manipulation of any part of the body so as to cause penetration of another person’s genital organ. The Act defines ‘genital organs’ to include the anus, while section 5(2) provides that a person convicted of sexual assault is liable to imprisonment for a term of not less than ten years, which may be enhanced to life imprisonment. 28.From the record, the complainant, PW2, was a child aged five years. Her age was proved through the evidence of her mother, PW1, who produced the birth certificate confirming that the complainant was born on 22nd August 2016. The appellant did not seriously challenge the complainant’s age. The remaining questions are therefore whether the act complained of was proved and whether the appellant was properly identified as the perpetrator. 29.PW2 testified that on the material day she was in the kitchen with the appellant, whom she knew as “uncle”, while her grandparents were at the shop. She stated that the appellant placed her on his lap and inserted his fingers into her anus. Although the charge particularized the genital organ as the vagina, PW1, PW3, PW4 and PW5 all gave evidence that the complaint made and medically acted upon related to the complainant’s private parts or vagina. PW5, the clinical officer, found that the hymen was broken, the vaginal walls were reddened, and there was a urinary tract infection. The evidence tendered clearly indicated that the minor had been sexually assaulted. 30.The appellant has challenged his identification as the perpetrator on the basis that PW1 indicated that all workers were called ‘uncle’. However, there was no evidence that there were other workers present at the material time so as to create a possibility of confusion. Further, the appellant admitted that he had worked at the complainant’s grandparents’ home for about two months. He was therefore not a stranger to the complainant. Moreover, PW3 testified that the minor indicated that this was not the first time to have been assaulted by the appellant since that is how they used to ‘play’. This was a case of recognition, and I am satisfied that the complainant could not have mistaken him and that the appellant was positively identified as the perpetrator. Issue II: Whether the conviction was safely founded on the complainant’s evidence, medical evidence and other prosecution witnesses 31.The appellant contended that the trial court relied on the evidence of a single witness, being the complainant, without corroboration. The law on this issue is settled. The proviso to section 124 of the Evidence Act allows a court, in sexual offences, to convict on the evidence of the victim alone if the court records reasons for believing that the victim is telling the truth. The section provides that the court may convict where “the court is satisfied that the alleged victim is telling the truth.” 32.The Court of Appeal in Wanjala v Republic [2024] KECA 1119 (KLR) restated the position and held thus:“Under the proviso to Section 124 of the Evidence Act, a trial court can convict for a sexual offence under the Sexual Offences Acton the evidence of a complainant alone without corroboration. In William Sowa Mbwanga v Republic [2016] eKLR, the Court of Appeal stated as follows:“The import of the proviso to section 124 of the Evidence Act that the trial court can convict an accused facing a charge of defilement solely on the evidence of the victim, if for reasons to be recorded, the court is satisfied that the victim is telling the truth. Medical evidence is not mandatory under that proviso, a position which was reiterated thus by this Court in George Kioji v Republic, CR. APP. NO. 270 of 2012 (Nyeri):“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”” 33.In the present case, the complainant’s evidence did not stand alone. PW1 testified that the complainant reported pain while urinating and disclosed that the appellant had inserted his fingers into her private parts. PW3 similarly testified that the complainant named the appellant and stated that it was not the first time such conduct had occurred. PW4 received the report and confirmed that the appellant was a person known to the complainant. PW5 medically examined the complainant and found injuries consistent with penetration by a penetrative object. The evidence of PW1, PW3, PW4 and PW5 therefore materially supported the complainant’s account. 34.On the alleged contradictions, the court must distinguish between minor discrepancies and contradictions that go to the root of the charge. In Njue & another v Republic [2023] KEHC 256 (KLR), the court stated that “Minor or trivial contradictions do not affect the credibility of a witness”. The same decision emphasized that contradictions become material only where they are substantial and affect the real substance of the case. 35.The appellant in his submissions, has attacked the medical evidence. He submitted that the evidence of PW1 was that the doctor indicated that he could not tell whether fingers were inserted in the complainant’s vagina. That despite the case having been reported on 6th December, 2021, PW5, the Clinical Officer testified that the approximate age of the injuries was three years, thus his evidence did not corroborate that of the complainant. That the absence of the hymen as indicated by PW5 was not included in the complainant’s evidence. 36.I have looked at the record. PW1 testified that the minor was initially taken to a private hospital, and the doctor informed him that he could not tell whether fingers had been inserted in her vagina. That she thereafter took the child to Muriranjas Hospital, where she was examined and found to have a UTI. PW5, the clinical officer who examined PW2, testified that upon examination, the complainant had a broken hymen, reddened vaginal walls and a urinary tract infection. He stated that the probable weapon was a penetrative object. In his testimony in the trial court proceedings, it is captured that the approximate age of injuries was three years, as submitted by the appellant. However, on cross examination by the appellant, PW5 stated that the child could have tolerated pain for about three days, since she was anxious. I have also looked at the medical examination report produced before the trial court, and it clearly indicates that the approximate age of the injuries was three days. The reference in the submissions to three years is therefore, in my view, a minor discrepancy or an error by the trial court, as it does not accord with the medical report on record when considered against the totality of the evidence tendered. Issue III: Whether the trial court shifted the burden of proof or failed to properly consider the appellant’s defence 37.The appellant submitted that the trial court shifted the burden of proof to him and rejected his defence without cogent reasons. It is trite that in criminal proceedings, the burden of proof remains throughout on the prosecution. In Republic v Kiprop & another [2025] KEHC 1804 (KLR), the court reiterated that :“there is no burden laid upon the accused persons to prove their innocence.” 38.I have looked at the trial court judgment. Whilst the trial magistrate captured the appellants defence in his judgment (para 22), he did not give cogent reasons for dismissing the same. The appellant’s defence was that he was framed due to a disagreement between himself and the complainant’s parents over items allegedly belonging to his employer. He also alleged that the complainant had been coached to lie against him. The defence was unsworn and was not supported by any independent evidence. While an accused person bears no duty to prove his innocence, the court is entitled to weigh the defence against the totality of the prosecution evidence. 39.Having reviewed the record, I find that the defence did not raise a reasonable doubt in the prosecution case. The complainant knew the appellant and reported the incident to her mother. Her account was repeated to her father, the police and the medical officer. The appellant’s assertion that the complainant had been coached to lie, to me, does not hold water and was an afterthought. The appellant had a chance to cross examine all the prosecution witnesses and did not hint anything towards that effect. Moreover, PW2 was clear and consistent in her testimony and during cross examination by the appellant. The medical evidence supported the allegation of sexual assault. There was no credible evidence to show that PW1, PW3 or the complainant had fabricated the complaint against the appellant. I therefore find that the trial court did not shift the burden of proof, but properly weighed the defence against the prosecution evidence and rejected it. Having re-evaluated the appellant’s defence vis a vis the evidence tendered by the prosecution, I am of the view that the charge was proved beyond reasonable doubt. I therefore find no basis to interfere with the conviction. 40.On sentence, the appellant was sentenced to fifteen years’ imprisonment by the trial court upon considering his mitigation. Section 5(2) of the Sexual Offences Act provides for imprisonment for a term of not less than ten years, which may be enhanced to life imprisonment. The sentence imposed was therefore lawful. However, the record does not show that the trial court complied with section 333(2) of the Criminal Procedure Code. The proviso to section 333(2) requires that where a person sentenced has, prior to sentence, been held in custody, “the sentence shall take account of the period spent in custody.” 41.From the charge sheet, the appellant was arrested on 9th December 2021 and arraigned in court for plea taking on 10th December 2021. Although bond terms were granted, the record shows that he remained in custody throughout the trial until sentencing on 9th December 2022. The period spent in custody ought therefore to have been taken into account. Disposition 42.In the result, the appeal against conviction fails. The conviction is upheld. 43.The appeal on sentence succeeds only to the extent that the sentence of fifteen years’ imprisonment shall commence from the date of arrest, being 9th December 2021, pursuant to section 333(2) of the Criminal Procedure Code. 44.Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 24TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/Velma