https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9072

Matее v Republic (Criminal Appeal E008 of 2025) [2026] KEHC 9072 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 9072 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E008 of 2025 KL Kandet, J June 26, 2026 Between Zawadi Kinyili Matее Appellant and Republic Respondent (Being an appeal from the original conviction and sentence of Hon. G. Okwengu, (SRM), in S.O Case No. E015 of 2023 at the Principal Magistrates Court at Kilungu, delivered on 26th February 2024) Judgment 1.By a judgement delivered in open court on 26th, 2.,2024 by Hon. G. Okwengu (SRM), the accused was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. In pursuance thereto, he was sentenced to twenty (20) years imprisonment on the same date. 2.Aggrieved by both the conviction and sentence, the accused/ Appellant filed an undated Petition of Appeal and “Memorandum Grounds of Appeal” challenging both the conviction and sentence. 3.The Appellant’s grounds of appeal can be summarized as follows: -a.The learned trial magistrate erred in law and fact by failing to properly evaluate and scrutinize the evidence on record, thereby arriving at an erroneous conviction.b.The conviction is unsafe and against the weight of the evidence due to fundamental and material contradictions within the prosecution's case.c.The learned trial magistrate erred in law and fact by failing to consider the appellant's mitigating circumstances and supporting evidence, resulting in an improper and excessive sentence. 4.The Respondent, through the Senior Assistant Director of Public Prosecutions Mr. Timothy M. Musyoki, filed written submissions in opposition to the appeal. The Respondent submits that the prosecution proved its case beyond any reasonable doubt, that the conviction was safe, and that the appeal should be dismissed in its entirety. The Respondent further submits that the sentence of 20 years imprisonment is the minimum mandatory sentence prescribed by law and is therefore unimpeachable. 5.The prosecution’s case is that on the material day, the complainant, a minor aged eleven years, was sent to Wamunyu to collect salt from Kimuntu’s mother. He did not find her but instead encountered the Appellant, who allegedly accosted him, removed his clothes, and subjected him to acts of unnatural penetration. The complainant testified that this was not an isolated incident, but had occurred on three separate occasions, each time in a bush within Kitema’s farm. The matter came to light when a fellow pupil disclosed the ordeal to a teacher, prompting the headteacher of Nduluni Primary School to inform the child’s father, who thereafter reported the incident at Kasikeu Police Station. 6.Upon medical examination, the minor was found to have a wound in the anal region consistent with penetration. An anal swab revealed the presence of pus cells and red blood cells, corroborating the complainant’s account. The prosecution relied on this medical evidence together with the testimony of the complainant to establish the charge against the Appellant. 7.When the accused was placed on his defence, his rights under section 211 of the Criminal Procedure Code were read to him and he elected to remain silent and await the verdict of the court. 8.This is a first appeal. The duty of the first appellate court is to analyze and re-evaluate the evidence that was before the trial court and itself come to its own independent conclusion on that evidence, without overlooking the conclusions of the trial court. The appellate court must bear in mind that it did not have the advantage of seeing and hearing the witnesses testify. See: Okeno v Republic [1972] EA 32. In the case of David Njuguna Wairimu v Republic [2010] eKLR it was stated as follows:“The duty of the first appellate court was to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There were instances where the first appellate court would, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. There was nothing objectionable in doing so, provided it was clear that the Court had considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 9.The court has considered the grounds of appeal, the proceedings and the judgment of the trial court and the submissions by the respective parties'. The broad issues for determination are:(i)Whether the prosecution proved its case beyond reasonable doubt, and specifically whether the three elements of the offence of defilement were established.(ii)Whether there were material inconsistencies and contradictions in the prosecution's case sufficient to warrant an acquittal.(iii)Whether the trial court conducted a holistic evaluation of the evidence.(iv)Whether the sentence imposed was lawful and appropriate. 10.The offence of defilement under Section 8(1) of the Sexual Offences Act No. 3 of 2006 comprises three essential elements which the prosecution must prove beyond reasonable doubt: (i) the age of the complainant; (ii) penetration as defined under Section 2(1) of the Act; and (iii) that it was the accused who committed the act. See: DS v Republic [2021] eKLR and Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. Issue 1: Whether the prosecution proved its case beyond reasonable doubt a. Age of the Complainant: 11.The age of the complainant is a critical element of the offence because the prescribed sentence under Section 8 is graduated according to the victim's age. The charge in this matter proceeded under Section 8(1) as read with Section 8(3), which provides for a minimum sentence of twenty years imprisonment where the victim is aged between twelve and fifteen years. 12.PW1 testified before the trial court that he was born on the 5th December 2012. He produced his Certificate of Birth, marked as PMF1-1 and subsequently produced as P Exhibit 1 at the trial court. This placed his age at 11 years and 2 months at the time of the incident on 27th February 2023. PW4, the clinical officer who examined him, confirmed his age as approximately 12 years in the P3 form. 13.The trial court correctly relied on the Certificate of Birth as formal and conclusive proof of the complainant's age. This court, upon its own evaluation, finds that the age of the complainant was sufficiently proved. It is trite law that a birth certificate is the primary and most reliable mode of proving age. See: Fappyton Mutuku Ngui v Republic, HCCA No. 129 of 2009 (Machakos). 14.At the time of the commission of the offence, D.N was 11 years and 2 months old. The learned trial magistrate convicted the appellant under Section 8(3), which applies to children aged between twelve and fifteen years, and imposed the minimum sentence of 20 years. The certificate of birth, however, places PW1 at 11 years and 2 months at the material time, which would ordinarily attract the provisions of Section 8(2), applicable to children aged eleven years or less, with a mandatory life sentence. 15.However, since the Appellant has appealed against conviction and sentence and the Respondent has not cross-appealed seeking enhancement, this court is not in a position to enhance the sentence beyond what was imposed by the trial court, and proceeds on the basis of the charge and conviction as framed. The age of the complainant as a child was in any case conclusively established. b. Penetration: 16.Section 2(1) of the Sexual Offences Act defines penetration as "the partial or complete insertion of the genital organs of a person into the genital organ of another person." The Court of Appeal has affirmed that penetration need not be deep or complete; any surface penetration suffices. 17.PW1 gave sworn testimony before the trial court. He stated in clear and unequivocal terms that the Appellant caught him, removed his clothes, used saliva to lubricate his anus, and used his penis to penetrate him in the place he uses for a long call. This testimony was given by a child who had satisfied the court that he understood the difference between right and wrong and the consequences of lying under oath. 18.The testimony of PW1 on penetration was sufficiently corroborated by the medical evidence. PW4, Frank Musau Musembi, a clinical officer at Sultan Hamud Hospital with six years' experience and a diploma in clinical medicine and minor surgery, examined PW1 on 8th March 2023, approximately nine days after the incident on 27th February 2023. PW4 found a tear on the anal orifice, bruises on the anus and anal splinter and pus cells of 3 to 5 on anal swab. The PRC form was filled on 8th March 2023 and the P3 form also bore the same date. PW4 confirmed that the complainant had been sodomised and that the injuries were consistent with penetration of the anal canal. These documents were produced as P Exhibits 2, 3 and 4 respectively. 19.PW2, the complainant's father, corroborated the account by observing that PW1 had a wound on the anus when he was brought to hospital. PW5, the teacher, independently noted that PW1 was walking slowly and with difficulty, which is consistent with the injuries described by PW4. PW6, the investigating officer, confirmed that the anal orifice of the complainant had an injury when the report was made at the police post. 20.This court, upon its own evaluation of the evidence, is satisfied beyond reasonable doubt that penetration occurred. The unchallenged sworn testimony of PW1 stands corroborated by cogent medical evidence and the observations of independent witnesses. I therefore find that penetration as required by law has been proved to the required standard. c. Identity of the perpetrator: 21.The question of the identity of the perpetrator is equally settled on the evidence. PW1 knew the appellant well. He described him as a casual worker at his home and identified him in court by name as Zawadi. The incident occurred during daytime, giving PW1 ample opportunity to observe and recognise his assailant. PW2 similarly knew the appellant as a person who did casual work at their homestead and whose family lived in close proximity. PW3, the Assistant Chief, identified the Appellant as a member of the community within his jurisdiction and confirmed that the boy identified him as the perpetrator. PW6 confirmed that the complainant identified Zawadi as the one who sodomised him. 22.This is a case of recognition, not mere visual identification. Where a witness identifies an accused person known to them, the dangers of mistaken identification that arise in cases of strangers do not apply with the same force. See: Anjoni & Others v Republic [1980] KLR 57; Wamunga v Republic [1989] KLR 424. 23.PW1 had personal and continuous knowledge of the Appellant. There was no suggestion in the record that PW1 was confused about the identity of his assailant. The fact that the incidences are said to have happened severally re-affirms the victim’s assertion that he was able to recognize the appellant. 24.The Appellant, when cross-examining the witnesses at trial, did not seriously challenge the fact of recognition. He cross-examined PW1 about the location of the incident and whether they had previously spent time together, but did not meaningfully challenge the fact that it was he whom PW1 had identified as the perpetrator. When called upon to defend himself the Appellant chose to remain silent. 25.From the evidence on record this court finds that the identity of the Appellant as the person who defiled D.N was established beyond reasonable doubt. Issue 2: Whether there were material contradictions: 26.The Appellant, in his second ground of appeal, contends that the prosecution case was replete with monumental inconsistencies and contradictions which were material enough to attract an acquittal. However, the Appellant has not identified a single specific inconsistency or contradiction in his Memorandum of Grounds of Appeal or in any submissions before this court. This ground is entirely bare and unparticularised. 27.Be that as it may, this court has carefully re-evaluated the evidence of all the six prosecution witnesses. There is no material inconsistency or contradiction that could shake the credibility of the prosecution's case or the truthfulness of the complainant’s evidence. The witnesses were consistent on the core facts that:i.the complainant was sent on an errand on 27th February 2023;ii.he encountered the Appellant whom he knew;iii.the Appellant penetrated him anally;iv.he was found to be walking with difficulty the following day;v.medical examination confirmed anal injuries consistent with penetration; andvi.the Appellant was identified, arrested, and charged. 28.This court therefore finds that there were no material contradictions that would have warranted an acquittal in the case before the trial court. Issue 3: Whether the trial court conducted a holistic evaluation of the evidence 29.The Respondent correctly submits that the Appellant has not demonstrated any contradictions or inconsistencies in the prosecution's case. The complainant was truthful, and his evidence was materially corroborated at every significant turn. This ground of appeal therefore fails. 30.The trial court specifically adverted to the testimony of PW1 which it found to be cogent, credible, and not challenged. The court further noted the corroboration provided by the medical evidence of PW4 and the observations of PW5. The court also correctly noted that the Appellant exercised his chose to remain silent when called upon to enter his defence and offered no challenge to the prosecution evidence. 31.This court finds no fault with the approach of the trial court. The learned magistrate conducted a thorough and holistic evaluation of all the evidence. This ground of appeal also fails. Issue 4: Sentence 32.The Appellant contends that the learned magistrate failed to consider his mitigation. The record of the trial court shows that, upon conviction, the Appellant offered the following in mitigation: that he had no previous records, that he had a feud with the complainant's parents, and that he had never done such an act. The trial court duly considered these matters before imposing the sentence. 33.The sentence imposed by the trial court of 20 years imprisonment is the statutory minimum. Courts have no discretion to impose a sentence below the statutory minimum in defilement cases. The Supreme Court and the Court of Appeal have held that the provisions of Section 8 of the Sexual Offences Act must be interpreted to retain the court's discretion in the exercise of sentencing, but the sentence must not fall below the prescribed minimum. 34.This court is satisfied that the sentence of 20 years imprisonment is lawful, appropriate, and within the prescribed statutory range. The offence of defilement is a grave offence that causes irreparable harm to its victims. The complainant in this case was an 11-year-old boy in grade 2 who was subjected to repeated acts of sodomy by a grown man known to him. The prevalence of such offences and the need for deterrence justify the imposition of the minimum mandatory sentence. There is no basis for interfering with the sentence. 35.A peculiar issue arose during the trial of the case in the subordinate court. The learned trial magistrate after concluding his voir dire, held that the minor could tell what is right from wrong and was therefore competent to give sworn testimony. With respect to the learned magistrate, that was a misdirection of the law. Section 19(1) of the Oaths and statutory Declarations Act, cap 15 Laws of Kenya provides as follows:“where, in any proceeding before any Court... any child of tender years called as a witness does not, in the opinion of the Court ...understand the nature of an oath, his evidence may be received, though not given on oath if, in the opinion of the Court...he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth...” 36.That proviso requires a judicial officer taking voir dire to consider whether the witness understands what an oath is, whether he has the requisite intelligence to justify the reception of evidence and understands the duty of speaking the truth. If those 3 pre-requisites are satisfied, then the witness can give sworn testimony. If they are not satisfied, then the witness should give unsworn testimony and where necessary still be subject to cross-examination. Conclusion And Orders: 37.From the foregoing, the appeal against conviction and sentence is hereby dismissed in its entirety. The conviction of the Appellant for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 is confirmed. The sentence of 20 years imprisonment imposed by the trial court is confirmed. 38.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026 VIRTUALLY THROUGH THE MICROSFT TEAMS PLATFORMKENNEDY KANDETJUDGEIn The Presence Of:Appellant Presnt In Person From Kamiti Maximum PrisonMs Otulo For The StateCourt Assistant: Aggrey Ochieng