https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12072

Waweru v Republic (Criminal Appeal E041 of 2024) [2026] KEHC 12072 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 12072 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E041 of 2024 SC Chirchir, J July 23, 2026 Between David Irungu Waweru Appellant and Republic Respondent (Being an appeal arising from the Judgment of Hon. R. KIMEU (RM) delivered on 13/06/2024 in sexual offences case No. E007 OF 2022 at the Chief Magistrate’s court at Kandara.) Judgment 1.The Appellant herein, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006(The Act). The particulars of the charge were that in the month of November 2021, at [Particulars withheld] sub-location, [Particulars withheld] location, Gatanga sub-county within Murang'a County, he intentionally caused his penis to penetrate the vagina of M.W.M., a child aged 7 years and 11 months. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Act. 2.After a full trial, he was convicted of the main charge and sentenced to 30 years' imprisonment. Petition of Appeal 3.Aggrieved by the conviction and sentence, the Appellant proffered this appeal vide a Petition of Appeal dated 26th June 2024, which he later Amended and filed alongside his submissions. He has faulted the trial magistrate for : by relying on the evidence of a young child without testing her intelligence through sufficient voir dire examination, ; that penetration and identification were for proceeding with the trial when he had not been supplied with all the documents, and hence infringing his rights under Article 50(2) ( c)and (j); and finally for failing to resolve material inconsistencies and contradictions in the prosecution’s case. Prosecution’s Case 4.MW, the complainant, was the first prosecution witness. She testified that, she was home with her sister when the Appellant herein, a neighbour she knew as Dave, called her to his house. She stated that once inside the house, the Appellant told her to remove her trousers. The Appellant also removed his own trousers and innerwear, slept on top of her, and put his “thing of kukojoa” (penis) into her “thing of kukojoa” (vagina); the Appellant threatened to beat her if she reports the incident. She went home and refused to do her homework. When the teacher inquired of her failure to do homework she told her that she had been defiled. That her mother was called by the teacher and she repeated what she had told the teacher. She was taken to the police station then to Kirwara hospital. On cross-examination by the Appellant, the witness stated that her mother had told her to speak the truth and to explain exactly what the Appellant had done to her. 5.PW2, was the mother of the complainant. She told the court that on 12th January 2022, at 4:00 pm, she was summoned to the school by the complainant’s class teacher. On reaching school , the complainant narrated the incident. She proceeded to Kirwara Police Station with the complainant then to Kirwara Level IV Hospital for medical examination. She identified the child’s birth certificate , the P3 form, treatment notes, and the PRC form. The birthncertificate indicated that the complainant was born on 1st March 2014, and hence the child was 7 years and 11 months at the time of the incident . 6.PW3 was the complainant’s teacher at [Particulars withheld] primary school. She testified that the complainant was her student in the second grade. She informed the court that in January 2022, she noted that the complainant failed to complete her classwork and homework. She summoned the minor’s mother and upon a joint interrogation, the child disclosed that a person she identified as Davy wa video had called her to his house, removed her trousers and inserted his manhood into her vagina. The matter was reported to the school’s head teacher and subsequently to the Area chief. On cross-examination, the witness denied knowing the Appellant. 7.PW4 was the Investigating Officer. He told the court that a report of defilement was lodged at Gatura on 27th January 2022 by PW2. He met the child’s teacher (PW3) and the minor (PW1) on 27th January 2022. The officer recounted the events as relayed by the complainant. That on 28th January 2022, a P3 form was filled, and the minor was escorted to Kirwara Level IV Hospital for medical treatment. He visited the scene of the alleged offence at Karangi shopping centre, where he observed that the houses occupied by the Appellant and the complainant’s family were adjacent to each other. He arrested the Appellant and PW1 identified him. He produced the minor's birth certificate as PExb No. 4. 8.PW5 was Dr. Gachanja Kamau. He examined the complainant and observed that her hymen was broken. He concluded that the defilement had happened 2 months prior. He produced the treatment card, PRC form, and P3 form, which were admitted into evidence as P. Exhibits No. 1, 2, and 3 respectively. 9.Under cross-examination, he stated that the examination took place on 28th January 2022, two months after the alleged incident. He explained that while a victim of defilement would ordinarily bleed, it was possible for such an injury to remain unnoticed by a parent for a period of two months. Defence Case 10.The Appellant apparently gave unsworn testimony as there is no evidence of cross- examination. His defence was founded on a claim of malicious fabrication stemming from a prior romantic involvement with PW3, the child’s teacher and a dispute over pregnancy of PW3. 11.The Appeal was heard through written submissions. Appellant’s Submissions 12.Firstly, the Appellant has challenged the intelligence and competence of PW1 to testify on oath, contending that the trial court conducted a voir dire examination that failed to probe the minor's understanding of truth versus falsehood or the solemnity of an oath. He relied on Section 19(1) of the Oaths and Statutory Declarations Act and Section 125 of the Evidence Act, as well as the decisions in Johnson Muiruri v Republic (1983) KLR 445 and Kibageny arap Kolil v R (1959) EA 92, to argue that without a proper inquiry, the testimony of such a child was inadmissible or required mandatory corroboration. 13.Secondly, the Appellant submitted that PW1’s evidence was coached, pointing to her admission under cross-examination that her mother had instructed her on what to say. He argued that this admission rendered her testimony unreliable and incapable of sustaining a conviction without strong independent corroboration, citing David Mwangi v Republic (2019) eKLR and JMM v Republic (2023) KEHC 14567 (KLR). 14.On the third issue, the Appellant contended that penile penetration was not proved beyond reasonable doubt. He argued that the medical evidence provided by PW5 was inconclusive, as a broken hymen could have multiple causes and the doctor failed to specify if the tear was recent. 15.Fourthly, the Appellant alleged a violation of his right to a fair trial under Article 50(2)(c) and (j) of the Constitution, claiming he was not supplied with witness statements and medical reports (PRC and P3 forms) before the trial commenced. He argued this denied him the facility to prepare his defence and relied on John Amugune v Republic (2021) eKLR and Idadwa v Director of Public Prosecutions (2022) KEHC 16940 (KLR) to suggest that such a failure should lead to nullification of the trial. 16.Finally, the Appellant faulted the trial magistrate for a lack of critical analysis of the evidence, stating the judgment failed to resolve material inconsistencies regarding the reporting timelines and the alleged fabrication of charges. Respondent’s Submissions 17.On the competence of the minor, it is the Respondent’s submission that while the actual questions were not recorded, the record reflected that the trial magistrate established that PW1 attended Sunday school, understood the difference between God and Satan, and knew it was important to tell the truth. Citing James Mwangi Muriithi v Republic (2016) eKLR in which the Court of Appeal cited Sula versus Uganda (2001) 2EA 556, the Respondent argued that the court may omit recording the specific dialogue if it records its observation to the effect that the child is possessed of sufficient intelligence. 18.On the allegation of coaching, the Respondent contended that PW1’s statement; “My mother told me to speak the truth” was not evidence of rehearsal but rather a parent’s natural instruction. The Respondent points out that this issue was never raised in cross-examination of PW2 or PW3 and was merely an afterthought. 19.Regarding identification, the Respondent submitted that PW1, PW2 and PW3 were neighbours of the Appellant and that recognition is a reliable form of identification. The Respondent cited Peter Wanjala Wanyonyi v Republic (2021) eKLR to argue that the prosecution had established the perpetrator's identity to the required standard. 20.On the issue of the supply of documents, the Respondent argued that the record showed the Appellant readily indicated his readiness to proceed when the matter came for hearing. Citing Isaak Anjelimo Makana v Republic, Criminal Appeal No. 57 of 2017,the Respondent maintained that no substantial miscarriage of justice was suffered as the Appellant was able to mount a spirited defence. 21.Finally, on sentence, the Respondent submits that the 30-year term was lawful and appropriate given the minor's age and the trauma inflicted. The Respondent relied on the Supreme Court decision in Republic v Mwangi (2024) KESC 34 (KLR) to affirm that mandatory sentences are lawful and urged the court to dismiss the appeal as being devoid of merit. 22.This being a first appeal, this Court is required to reconsider and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusions. In undertaking that duty, the Court must bear in mind that it did not see or hear the witnesses testify and must therefore make due allowance for that disadvantage.( see: Okeno vs Republic(1972) EA 32). 23.I have reconsidered the evidence , the judgment of the trial court , the grounds of appeal and the parties’ submissions and in my view, the issues arise for determination :a.Whether the complainant was competent to testify and whether the voir dire examination was properly conducted;b.Whether the Appellant’s rights under Article 50(2)(c) and (j) of the Constitution were violated;c.Whether the prosecution proved the essential ingredients of defilement beyond reasonable doubt;d.Whether the evidence of the complainant was credible and whether corroboration was required;e.Whether the Appellant’s defence of fabrication raised a reasonable doubt; andf.Whether there is any basis for interfering with the sentence.Competence of the complainant and the voir dire examination 24.The complainant was aged about 7 years and 11 months at the time of the incident. The Appellant contended that the learned trial magistrate failed to conduct a proper voir dire examination because the questions put to the child were not fully recorded and the inquiry did not sufficiently establish that she understood the nature and solemnity of an oath. 25.Section 125(1) of the Evidence Act provides that all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers by reason of tender years, extreme old age, disease of the body or mind, or any other similar cause. 26.Section 19(1) of the Oaths and Statutory Declarations Act further provides that where, in proceedings before a court, a child of tender years is called as a witness, the court is to receive the child’s evidence on oath where it is satisfied that the child understands the nature of an oath. Where the child does not understand the nature of an oath but is possessed of sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth, the child’s evidence may be received though not given on oath. 27.In Kibangeny Arap Kolil v Republic [1959] EA 92, the Court emphasized the need for a trial court to conduct a preliminary inquiry before receiving the evidence of a child of tender years. The purpose of the inquiry is to determine whether the child understands the nature of an oath and, if not, whether the child has sufficient intelligence and appreciates the duty to tell the truth. 28.Previously the courts took the position that it is desirable that the trial court records both the questions put to the child and the answers given. Such a record enables an appellate court to determine whether the trial court properly exercised its judgment. Nevertheless, the later decisions of the Court of Appeal demonstrate that failure to record each question and answer does not, by itself and in every case, render the child’s evidence inadmissible or nullify the trial. 29.The record in the present case indicates that the learned trial magistrate conducted an inquiry before PW1 testified. The court established, among other matters, that the child attended Sunday school, understood the distinction between God and Satan and appreciated the importance of telling the truth. The trial magistrate thereafter permitted her to testify on oath. The record sufficiently discloses the subject and result of the inquiry. It cannot therefore be said that the court received PW1’s evidence without first satisfying itself as to her competence. 30.The substance of PW1’s testimony also demonstrates that she was capable of understanding the questions put to her and giving rational answers. She explained where the incident occurred, how the Appellant called her into his house, what he did after she entered the house and the threat he allegedly made. She also intelligently responded to the Appellant’s questions during cross-examination. 31.The competence of a witness is ultimately concerned with the witness’s capacity to understand questions and give rational answers. The fact that the child expressed herself in simple, age-appropriate language did not diminish the evidential value of her testimony. I therefore find that the voir dire examination, although briefly recorded, was not so deficient as to render PW1’s evidence inadmissible or occasion a miscarriage of justice. 32.This ground of appeal fails. 33.Related to the above issue is the issue of credibility of the complainant and the alleged coaching. The Appellant contended that PW1 had been coached because she stated during cross-examination that her mother had told her to speak the truth and explain what the Appellant had done. There is a distinction between coaching a witness to give a false account and instructing a child to answer questions truthfully. A parent’s advice to a child to tell the truth, without being told what to say is not coaching. 34.Another issue related to the two preceding issues is the question of corroboration and section 124 of the Evidence Act. The Appellant argued that the complainant’s evidence required corroboration because of her age, the alleged inadequacy of the voir dire examination and the suggestion that she had been coached. 35.The proviso to section 124 of the Evidence Act expressly addresses prosecutions for sexual offences. It permits a court to convict on the evidence of the alleged victim alone where the victim is the only witness to the offence, provided the court believes the victim and records the reasons for that belief. 36.A court relying on the uncorroborated evidence of a complainant must expressly demonstrate that it believed the complainant and state the reasons for doing so. In the present case, PW1’s evidence was not wholly unsupported. The medical examination established that her hymen was broken. PW3’s evidence confirmed the behavioural change that precipitated the disclosure. PW2 and PW3 confirmed that the child identified the same person in her account. The investigating officer confirmed the proximity of the parties’ residences. This supporting evidence reinforced PW1’s direct evidence. 37.I find the evidence of the complainant believable because She gave a clear and age-appropriate description of the sexual act; She consistently identified a neighbour whom she knew before the incident; The circumstances provided sufficient opportunity for recognition; and her evidence was compatible with the medical findings. I therefore find that the complainant’s evidence was fully corroborated and therefore the compliance with the proviso to section 124 of the Evidence Act was unnecessary. Whether the Appellant’s right to a fair trial was violated 38.The Appellant contended that he was not supplied with the prosecution witness statements, the P3 form, the post-rape care form and the treatment notes before commencement of the hearing. He maintained that the omission violated his rights under Article 50(2)(c) and (j) of the Constitution. 39.Article 50(2)(c) guarantees every accused person adequate time and facilities to prepare a defence. Article 50(2)(j) guarantees the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence. 40.The prosecution’s duty of disclosure is not a matter of convenience or discretion. It is an integral component of the right to a fair trial. In Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, the Court of Appeal held that the prosecution is under a duty to disclose to an accused person, in advance, the material it intends to rely upon. The obligation extends to relevant material in the prosecution’s possession and continues throughout the trial. Subsequent decisions of the Court of Appeal have consistently treated that duty as part of the constitutional guarantee of a fair hearing. 41.The same principles have been applied under Article 50(2)(j) of the Constitution. It is not sufficient for the prosecution merely to reveal its evidence as each witness takes the stand. Disclosure must be made sufficiently in advance to afford the accused a meaningful opportunity to prepare. 42.In considering the legal consequence of non-disclosure, however, the court must examine the entire record and the circumstances of the particular trial. Although the right is constitutional and fundamental, not every procedural omission automatically results in an acquittal. The nature of the breach, the stage at which it occurred, whether it was remedied and the prejudice suffered by the accused are relevant considerations. 43.I have carefully examined the record placed before this Court. The Appellant did not raise the issue of non-disclosure when the prosecution witnesses testified. He did not apply for an adjournment to study any of the documents produced, nor did he complain that the contents of a particular statement or exhibit had taken him by surprise. The Appellant cross-examined PW1 about her account and the instructions allegedly given by her mother. He cross-examined the medical witness concerning the date of examination, the broken hymen, absence of blood, negative laboratory results and the contents and formal requirements of the P3 and post-rape care forms. His questions show that he understood the nature of the medical evidence and challenged its probative value.The Appellant has not identified any specific line of defence that he was prevented from pursuing because of late or absent disclosure. The evidence complained of was tested through cross-examination. The Appellant also gave a detailed defence alleging fabrication, an earlier relationship with PW3, a dispute over pregnancy and paternity, a demand for money and a police set-up. 44.The omission by the trial court to expressly record compliance with Article 50(2)(j) was undesirable. Nonetheless, considering the proceedings as a whole, I am not persuaded that the Appellant has established a violation that rendered the trial unfair. This ground of appeal is equally without merit. Whether the offence was proved beyond reasonable doubt. 45.The Appellant was charged under section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(1) provides that a person who commits an act which causes penetration with a child is guilty of the offence of defilement. The essential ingredients of defilement are: the complainant was a child and her age were proved; There was penetration of the complainant’s genital organ; and; The accused person was positively identified as the perpetrator. The prosecution bore the burden of proving each of those ingredients beyond reasonable doubt. The Age of the victim 46.On Age, PW2 produced the complainant’s birth certificate, which showed that she was born on 1st March 2014. The offence was alleged to have occurred in November 2021. The complainant was therefore seven years and approximately eight months old at the time. A birth certificate is direct documentary evidence of age. Its authenticity was not challenged. I am consequently satisfied that the prosecution proved beyond reasonable doubt that PW1 was a child aged below eleven years. Penetration 47.On Penetration the term is defined in section 2 of the Act as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”.PW1 testified that the Appellant called her to his house after her mother had left. Once inside, he instructed her to remove her trousers. He also removed his trousers and underclothes, lay on top of her and inserted his “thing of kukojoa” into her “thing of kukojoa.” 48.A young child cannot reasonably be expected to use the correct terminologies of the human anatomy. Kenyan courts have long accepted that such euphemisms like the one used by the complainant herein, are what children use to describe sex penetration. 49.PW5 testified that the complainant was examined on 28th January 2022, approximately two months after the alleged incident. Her hymen was found to be broken. Tests for HIV, sexually transmitted infections and urine abnormalities were negative. The doctor nevertheless formed the opinion that defilement had occurred approximately two months previously. 50.The Appellant argued that a broken hymen is not conclusive proof of penile penetration and may result from causes unrelated to sexual intercourse. That submission is correct, as a general proposition. Medical evidence must therefore be considered together with the complainant’s testimony and the other circumstances of the case. The prosecution case did not depend solely upon the condition of the hymen. It was founded primarily on PW1’s direct evidence that the Appellant inserted his penis into her vagina. 51.The delay of approximately two months before medical examination was adequately explained by the evidence. PW1 testified that the Appellant threatened to beat her if she disclosed the incident. Her behavioural change and failure to complete schoolwork led PW3 to inquire into her circumstances, after which she disclosed what had happened. In view of the interval between the incident and the examination, the absence of bleeding, spermatozoa, or fresh injury was not unexpected. Negative laboratory tests did not disproves penetration. 52.PW1’s account of penetration was direct, clear and consistent on the essential act. The medical finding of a broken hymen, though not conclusive by itself, was compatible with her account. I am satisfied that penetration was proved beyond reasonable doubt. Identification 53.The Appellant also challenged his identification as the perpetrator. However, this was not a case in which the complainant purported to identify a stranger whom she had seen briefly under difficult circumstances. PW1 knew the Appellant before the incident. She referred to him as “Davy wa video” and described him as a neighbor. The incident took place during the daytime, inside the Appellant’s house. The interaction was not momentary. According to PW1, the Appellant called her, spoke to her, directed her to remove her trousers, removed his own clothing and lay on her. The circumstances afforded the child ample opportunity to recognise him. 54.In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition of an assailant known to a witness is generally more satisfactory and more reliable than identification of a stranger because it depends upon the witness’s prior knowledge of the person identified. PW1’s reference to the perpetrator as “Davy wa video” was not shown to refer to another person. The Appellant did not suggest that there was another neighbour known by that name whom the child could have confused with him. 55.I am satisfied that the recognition evidence was positive, and free from the possibility of mistake. Whether the prosecution case contained material inconsistencies 56.The Appellant criticized the prosecution’s evidence concerning the date of disclosure and reporting. The offence was alleged to have occurred in November 2021. PW2 stated that she was summoned to the school on 12th January 2022, while the investigating officer stated that a report was lodged on 27th January 2022. The medical examination was carried out on 28th January 2022. 57.These dates are not necessarily contradictory. The date on which a child disclosed an incident to a parent or teacher need not be the same date on which a formal report was entered at the police station or the date on which a medical examination was conducted. Even assuming some uncertainty concerning the precise date in January when PW1 first made the disclosure, it did not affect the essential allegation that the offence occurred in November 2021 or the identity of the alleged perpetrator. 58.I consider the discrepancies identified to have been peripheral and did not go to the ingredients of the offence of defilement. The Appellant’s defence 59.The Appellant denied the charge and alleged that it was fabricated as a consequence of an earlier romantic relationship between himself and PW3, the complainant’s teacher, which went sore. The Appellant gave a lengthy testimony about the alleged affair and the intrigues then attendant to it. 60.It is well settled that an accused person assumes no burden to prove his innocence. A defence need only raise a reasonable doubt in the prosecution case. Even where a defence appears improbable, it must be considered alongside the prosecution evidence and not rejected merely because it was not proved on a balance of probabilities. 61.The alleged grudge was principally between the Appellant and PW3. PW3 however was not the only witness. There were other independent witnesses including the Doctor and the investigations officer. What reason for instance would these two have to make a false testimony? Further why would a seven-year-old child, give a detailed account of penetration and consistently identify the Appellant merely to advance an alleged dispute between him and her teacher. Also, the child was too young to be coached to the extent that she could retain the information long enough to present to court, in the clear and simplistic manner that she did. 62.The allegation that Kshs.130,000 demanded from the Appellant was not supported by particulars identifying the person who made the demand, or complaint made concerning the demand. 63.While an accused person is not legally obliged to produce corroboration for a defence, the absence of detail or objective support is a relevant consideration when assessing whether the allegation reasonably undermines the prosecution case. The Appellant did not displace the positive recognition evidence of PW1, nor did it provide a plausible explanation for the child’s detailed account of what transpired. 64.The Appellant’s defence was simply implausible. The sentence 65.The Appellant was convicted under section 8(1) as read with section 8(2) of the Act and sentenced to a prison term of 30 years. The above Section 8(2), on the other hand prescribes a sentence of life imprisonment. The sentence was therefore within the law. 66.In respect to the provisions of section 333(2) of the criminal procedure code, perusal of the trial record shows that the Appellant was in custody throughout the trial. He is therefore entitled to a reduction of the sentence equivalent to the period he spent in custody prior to conviction. The trial court never made such an allowance. 67.In the end, the entire Appeal fails and the following orders are issued:a).The conviction and sentence by the trial court is hereby upheld.b).The sentence of 30 years sentence is hereby deemed to have taken effect from 3rd February being the date when the Appellant was arrested. DATED, SIGNED AND DELIVERED AT ISIOLO, VAI MICROSOFT TEAMS, THIS 23RD DAY OF JULY 2026.S. CHIRCHIRJUDGEIn the presence of :Roba Katelo- court AssistantThe AppellantMr. Majale for the Respondent.