Kevin Wanjala v Republic

company of the appellant, B.W., and B.M. She stated that while she slept with B.W. (the victim) and B.M. in the bedroom, the appellant was in the living room watching television. That while they were asleep, she woke up and found that B.W. was missing from the bed, and upon looking for her, she found her being defiled by the appellant behind the house. She later informed her mother of what had happened. C.M. (PW2) was the mother of the complainant. She stated that at the time of the ordeal, her daughter was 10 years old, having been born on 2nd December 2003. She also testified that the appellant was her herdsman and that on 7th January 2015, the mother of PW1 informed her of what had transpired while she was away in Nairobi on 31st December 2014. She reported the matter at Tambach Police Station and later escorted her daughter to the hospital. 4. The victim, B.W., testified as PW3. On her part, she confirmed that while she was asleep in the company of PW1 and B.M., she was called outside by the appellant, who led her to the back of the house and defiled her. Reuben Kimaiyo (PW4) was a clinical officer attached to Tambach Sub-County Hospital at the material time. He testified that the complainant was escorted to the hospital eight days after the act. He noted redness on her labia minora while the labia majora was normal. The urine test was normal, while the HIV test turned out negative. He concluded that the minor had been penetrated. Police Constable Lydia Kumbut (PW5), on her part, gave an account of her investigations into the matter, after which she preferred the charge of defilement against the appellant. 5. In his defence, the appellant denied defiling the complainant, stating that he was arrested by the police after he persistently sought leave from his employer (PW2) to go home. 6. When the matter came up for hearing, the appellant appeared in person while Ms. Mukangu, learned Assistant Director of Public Prosecutions, appeared for the respondent. Parties sought to rely on their written submissions, which they had already filed. 7. Through the submissions dated 11th February 2026, the appellant argued that the High Court erred in finding that his conviction was safe, yet not all the ingredients of defilement were proved. Specifically, the appellant took issue with the elements of penetration and identity. It was his submission that the medical report fell short of proving penetration, as the findings could not be conclusively relied upon to point to penetration of the minor. Regarding his identity, he submitted that the trial court and the first appellate court failed to approach the evidence with caution, as it was at night. According to the appellant, the loopholes ought to have been resolved in his favour. The appellant also challenged the sentence on the ground that it was harsh and excessive in the circumstances. He therefore urged the Court to allow the appeal in toto. 8. Ms. Mukangu, for the respondent, relied on submissions dated 3rd March 2025 wherein she restated the evidence and submitted that the offence was proved. As for the sentence, counsel urged us to retain it, submitting that it is lawful and that the trial court exercised its sentencing jurisdiction judiciously. 9. Having considered the record of appeal, the grounds of appeal, and the submissions by counsel, the sole issue for our determination is whether the offence of defilement was proved to the required standard, and if so, whether the sentence of life imprisonment was lawful and appropriate. 10. To return a conviction on a charge of defilement under section 8(1) of the Sexual Offences Act, the prosecution is required to establish that the victim, who was a child at the time of the commission of the offence, was penetrated and that the accused was correctly identified as the person who committed the offence. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/774/eng@2026-04-24 2

page 2 of 4

11. To assess whether the complainant’s age was established, it is prudent to recall the jurisprudence set by the Court in relation to proof of age of victims in sexual offences. In Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR), the Court succinctly summarized the jurisprudence thus: “ The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R. Cr. Appeal No.19 of 2014 and Omar Uche v R. Cr. App. No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial, the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim. Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable.” 12. In the case at hand, PW2, the complainant’s mother, testified that the complainant was born on 2nd December 2003. She produced her birth certificate to buttress this evidence. The incident occurred on 31st December 2014. The complainant was therefore 10 years old at the time of the incident. The trial court and the first appellate court both accepted this evidence, and we see no reason to interfere with that concurrent finding of fact. 13. With regard to the second element of penetration, we start by adverting to section 2 of the Sexual Offences Act, which defines penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” In Wanyonyi v Republic [2019] KECA 679 (KLR), the Court appreciated that the absence of medical evidence to support the fact of rape is not decisive, as the rape can be proved by the oral evidence of the victim or by circumstantial evidence. 14. The prosecution relied on the evidence of PW1 (an eyewitness), PW2, PW3 (the victim), as well as the medical evidence of PW4. PW3 testified that the appellant took her behind the house and defiled her. PW1 testified that she saw the appellant defiling PW3 behind the house. This direct eyewitness testimony was sufficient to prove penetration. In our view, even if the medical evidence was not conclusive on its own, it was corroborated the witnesses' testimony. However, in the appeal before us we are not persuaded by the appellant’s argument that the medical evidence was inconclusive because PW4 noted redness of the labia minora, which was consistent with penetration. Furthermore, even though medical evidence is essential to prove penetration, the absence of a conclusive report does not vitiate the prosecution's evidence where there is credible witness testimony regarding the alleged act. In this case, the victim testified that she was defiled. PW1 saw the appellant defiling the victim behind the house. The evidence of PW1 corroborated the victim's account of when, where, and how the act occurred. We therefore find that penetration was proved. 15. Turning now to the question of identification, the appellant argued that it was unreliable because the incident occurred at night. However, the evidence of PW1 and PW3 was that they knew the appellant well, as he was a herdsman employed by PW2 and lived on the homestead. The appellant was, in fact, in the same house as the complainant and PW1 on the fateful night. The complainant testified that the appellant called her several times before she yielded, and he took her to the back of the house. The incident occurred behind the house, but PW1 testified that she saw the appellant during the act. In such circumstances, this was a case of recognition, not mere identification of a stranger. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/774/eng@2026-04-24 3

page 3 of 4

16. The appellant’s defence was displaced by the positive recognition evidence from PW1 and PW3. This is one of the few cases where a case of defilement had an eyewitness. Ordinarily, cases of this nature are done in secrecy and without eyewitnesses. In the circumstances, we find that both the trial court and the first appellate court properly appreciated the evidence and the law regarding the offence. The conviction is therefore safe and is hereby sustained. 17. With regard to the appeal against sentence, the same cannot succeed. The only sentence provided for the defilement of a child aged below eleven years under section 8(2) of the Sexual Offences Act is life imprisonment. The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR) affirmed the lawfulness of the minimum sentence of life imprisonment prescribed under section 8(2) of the Sexual Offences Act. The sentence of life imprisonment is therefore a legal sentence as per the law established. 18. Flowing from our findings above, the fate of this appeal is for dismissal in its entirety, and we hereby dismiss it. DATED AND DELIVERED AT NAKURU THIS 24TH DAY OF APRIL 2026. J. MATIVO JUDGE OF APPEAL M. GACHOKA C.ARB, FCIARB JUDGE OF APPEAL W. KORIR JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/774/eng@2026-04-24 4

page 4 of 4