https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9648

Wekesa v Republic (Criminal Appeal E052 of 2025) [2026] KEHC 9648 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9648 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Appeal E052 of 2025 S Mbungi, J June 30, 2026 Between Julius Wekesa Appellant and Republic Respondent Judgment 1.The Appellant herein had been charged with the offence of defilement contrary to section 8 91) as read with section 8 (3) of the sexual offences Act no 3 of 2006. 2.The particulars of the offence are that Julius Wekesa (alias Josee) on the 15th day of March 2004 at [Particulars Withheld] in Lunza sub-location in Butere sub-county within Kakamega County intentionally and unlawfully caused his penis to penetrate the vagina of RN, a child aged 12 years old. 3.He was charged with an alternative act of committing an indecent act with a child contrary to section 11 (1) of the sexual offences Act No. 3 of 2006. 4.The particulars being that Julius Wekesa (Alias Josee) on the 15th day of March 2004 at [Particulars Withheld] in Lunza sub-location in Butere sub-county within Kakamega County, intentionally and unlawfully touched the vagina of R.N, a child aged 12 years old, with his penis. 5.The prosecution called 5 witnesses in support of its case, while the appellant was the only witness in defence. 6.The trial court, upon analysing the parties' case in depth, found that the prosecution had established a good case against the accused and that all the ingredients of the offence of defilement had been established, and that they had proved their case beyond a reasonable doubt. 7.The trial court sentenced him to 20 years' imprisonment pursuant to section 333 (3) of the CPC. 8.The appellant, being dissatisfied with the decision of the trial court, preferred the following appeal based on the following grounds of appeal;a.That the learned trial magistrate erred in law and in fact by coming up with the decision of 20 years’ imprisonment on the case, whose evidence was not proved beyond a reasonable doubt.b.The learned trial magistrate erroneously erred in law and in fact by failing to note and consider that there was a boiling grudge between him and the accused father over his second wife, who was his girlfriend for years before their marriage.c.The trial court erred in law and fact by convicting the appellant on uncorroborated evidence.d.The trial magistrate failed to consider his mitigation.e.The trial magistrate erred in law and fact by excluding the appellant's defence without giving reasons.f.That more grounds to be adduced after receipt and perusal of the trial court proceedings and judgment. 9.The appeal was to be canvassed by way of written submissions; however, at the time of writing the judgment parties had not filed their submissions. Evidence in brief. 10.Pw1, the complainant, testified that she was 12 years old she produced her birth certificate serial no. A27 18982 as P Exh 1. She identified the accused as Jose, someone who worked for them. She testified that on 15/03/2024, she was at home with her stepmother when her sister called her out. She went and saw the accused standing in the kitchen, and he asked for her matchbox. Later, he covered her mouth and ordered her to remove her clothes and raped her behind the kitchen, and asked her not to tell anyone. She stated that the following morning, her stepmother realised that she had some difficulties working and when she examined her private parts, realised that she had been raped. That’s when she informed her of what had happened. 11.She stated that the accused was arrested and escorted to Lunza police post, where she explained what happened, she was examined and treated. She produced the P3 form dated 26/3/2024 PMF1-2 and the PRC form dated 26/3/2024 PMF 1-3. 12.On cross-examination by the accused, she said that he covered her mouth and raped her, and after her stepmother examined her and she was escorted to the hospital and it was confirmed she had been defiled. 13.PW2 was Sarah Dena. She testified that the complainant was her niece. She recalled that on 15.03.2024, around 10 pm she was on her way to Nairobi but came back on 23.03.2024 and on 24.03.2024 she was informed something happened to the complainant, she observed her she claimed her step brother mike had defiled her when she asked mike claimed that the appellant had called her and started fondling her later PW1 said that the accused is the one who defiled her. 14.She examined her and found she had a discharge with a foul smell, on 25/3/ 2034, the accused came to their homestead and when he saw them, he attempted to run but they caught him and took him to Lunza police station, PW1 was escorted to the hospital, where she was examined and treated. 15.On cross-examination by the accused, she confirmed that PW 1 was 12 years old and that the accused was her lover before, he used to come to their shop to buy goods. 16.PW3 was the complainant’s father. He testified that the accused was their neighbour. He stated that on 23/3/2024, his wife, PW2, examined PW1 upon defilement allegations, and confirmed that she had been defiled. PW2 escorted PW1 to the hospital, where it was confirmed that she had been defiled. 17.On cross-examination, she stated that PW1, said it was accused who had defiled her. 18.PW4 was Fanice Chitole, a clinical officer at Butere County Hospital. She produced PW1's medical report as an exhibit. 19.On examination, it was confirmed that there were no bruises or lacerations on the outer vagina, but the hymen was broken and fresh. There was a white discharge which has a foul smell. He produced the PMF 1-2 as P Exh 2 and PMF1-3 as PEXH 3, as well as treatment notes as PEXH 4. 20.On cross-examination, he confirmed that the vaginal examination revealed a whitish discharge which had a foul smell. 21.PW5, PC Phoebe Khisa, testified that on 25/3/2024, she was at the station when the complainant and her parents came to the station to report that she had been defiled by the accused person on 15/3/2024 at 2200 hours. She filed her report and issued a P3 form; The accused traced, and arrested. 22.On cross-examination by the accused, she testified that the accused was brought to the station by the complainant’s family after he was suspected of defiling the minor. 23.At the close of the prosecution’s case, the trial court found that the prosecution they had established a prima facie case against the accused and placed him on his defence 24.The accused gave a sworn defence, did not call any witness. He confirmed that he worked for the complainant’s neighbour. He stated that he was working on the farm when one Sharon informed him that there were rumours that he had defiled the complainant, and on 25th March 2024, while he was running errands he was approached by 4 men who stopped him and interrogated him on the allegations of defilement, and he was roughed up. They claimed that one Sarah, who was his ex-girlfriend, informed them that he had defiled the girl, although he denied the allegation. The crowd attacked him and escorted him to the police station. 25.On cross-examination by the prosecution, he maintained that he knew the minor on the day of the arrest and that he knew Sarah Dena. 26.At the close of the defence case, the trial court found that the prosecution had proved the elements of defilement and, upon analysing the pre-sentencing report and the mitigation, the court sentenced the accused to 20 years' imprisonment, which prompted the current appeal. Analysis and determination 27.It is trite law that in a first appeal, the High Court is under a duty to re-evaluate, re-analyse, and reconsider the evidence tendered before the trial court with a view to arriving at its own independent conclusions on the facts and the law, while giving due regard to the advantage possessed by the trial court in having seen and heard the witnesses. 28.This duty was authoritatively stated by the Court of Appeal in Okeno v Republic [1972] EA 363 where Law JA held:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination in the appellate court and to the appellate court’s own independent conclusions on the evidence and the law, without deference to the conclusions of the trial court on the evidence. The first appellate court must itself weigh conflicting evidence and make its own evaluation of it.” Whether defilement was proved 29.The ingredients of defilement are the age of the complainant, penetration, and identification of the offender. 30.Section 8(1) of the Sexual Offences Act provides: “A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…” 31.In Mark Oiruri Mose v Republic [2010] kehc 1911 (klr), the Court of Appeal reiterated that the prosecution must prove these ingredients beyond a reasonable doubt. Where age is proved by a birth certificate and medical evidence confirms penetration, the only remaining issue is whether the accused was the perpetrator. 32.On age, PW1 produced a birth certificate, and the evidence that she was 12 years old was not controverted. 33.On penetration, the medical evidence from PW4 showed a broken hymen and the victim’s vagina had a foul discharge. Penetration in sexual offences need not be proved by complete or even visible physical injury; the slightest proof of it is sufficient if the evidence points to the fact that there was penetration. 34.The medical findings in this case are strongly consistent with the complainant’s narrative that she was defiled by the accused. 35.In Mohamed v. Republic [2012] eKLR, the Court of Appeal held that medical evidence showing recent penetration is powerful corroboration. The absence of external bruises does not negate penetration, especially with a young child. 36.On the identification of the perpetrator, PW1, the complainant, stated that she knew the appellant before the incident as a person called Jose who worked nearby and used to shop from her father’s shop. The complaint evidence was that of recognition, not identification of a stranger. Recognition evidence is generally more reliable than identification of a stranger, though the court must still examine it carefully. The Court of Appeal in Anjononi & Others v Republic KLR 59 held that recognition is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends on the witness’s knowledge of the accused before the incident. PW1’s evidence was also supported by PW2, PW3, PW4, and PW5, all of whom placed the appellant within the chain of events. 37.I am therefore satisfied that the prosecution proved its case beyond a reasonable doubt that the complainant was a child of tender years, that penetration occurred, and that the appellant was positively recognised as the assailant. The conviction was thus safe. The trial court cannot be faulted. 38.The Appellant complains of uncorroborated evidence. However, the Sexual Offences Act does not impose a mandatory requirement of corroboration. Section 124 of the Evidence Act was amended to remove the cautionary rule in sexual offences involving children. In Kassim Ali v. Republic [2019] eKLR, the Court of Appeal held: “The evidence of a child of tender years requires scrutiny, but once the court is satisfied that the child is truthful, conviction can stand on the child’s evidence alone if it is cogent and corroborated by other evidence.” 39.In this case, PW1’s evidence was corroborated by medical findings and the evidence of PW2, PW3, and PW4. Hence, the ground on uncorroborated evidence fails. 40.The appellant holds that there was an unresolved grudge between him and the complainant’s stepmother, PW2. This was a matter of defence theory, but no credible evidence was placed before the court to substantiate it. A bare allegation of grudge, without more, cannot displace cogent prosecution evidence. In Mwanasokoni v Republic KLR 198, the Court of Appeal held that an accused person bears no burden to prove innocence, but where a defence is advanced, it must be weighed against the prosecution evidence and can only create doubt if it is credible and consistent with the record. 41.Here, the alleged grudge was not supported by any material contradictions to erode the prosecution's case. The defence was therefore an afterthought and was properly rejected. 42.The appellant held that the trial court failed to consider his defence on its merits. It is required that a trial court consider both sides prosecutions evidence and defence. The record shows that the appellant’s sworn defence was noted and weighed against the prosecution evidence. The trial court then found that the prosecution's case was stronger and that the defence did not raise a reasonable doubt. That approach accords with the law, because a defence must be considered in the context of the total evidence and not in isolation. 43.The assertion that the defence was excluded without reasons is not borne out by the record. The trial court gave reasons by finding that the elements of the offence had been proved and that the defence did not dislodge the prosecution's case. That was sufficient in the circumstances. 44.On the issue of sentencing, Section 8(3) of the Sexual Offences Act provides the penalty for defilement of a child aged between 12 and 15 years as imprisonment for a term of not less than 20 years. The sentence imposed by the trial court was therefore lawful. The Supreme Court and the Court of Appeal have consistently recognised that where Parliament has prescribed a minimum sentence under section 8 of the Sexual Offences Act, the courts must apply the statute as enacted, subject only to lawful constitutional constraints. 45.However, section 333(2) of the Criminal Procedure Code requires the court to take into account the period spent in custody before sentencing. In Ahamad Abolfathi Mohammed & Another v Republic eKLR, the Court of Appeal held that the trial court must comply with section 333(2) by considering pre-sentence custody, and failure to do so may amount to excess punishment. The record should therefore be examined to ascertain whether the appellant had spent time in custody before sentence and whether that period was factored in. 46.The appellant was held in custody before conviction and sentence, I have seen the warrant committal dated 11.6.2025. It is clear that the sentence was to run from date of arrest which was on 25.3.2024, as per the charge sheet. 47.Upon a fresh and exhaustive re-evaluation of the evidence, I find that the prosecution proved the offence of defilement against the appellant beyond a reasonable doubt. The complainant was a minor aged 12 years, penetration was proved by the medical evidence, and the appellant was sufficiently recognised as the perpetrator. The appeal against the conviction lacks merit. 48.The sentence of 20 years’ imprisonment was lawful under section 8(3) of the Sexual Offences Act. Accordingly, the appeal against conviction is dismissed. 49.Right of Appeal 14 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 30TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/VelmaAppellant present online.Ms Emily Kiu present online.