Ambuka v Republic

Hospital where she was examined and treated. They were thereafter referred to a police station with notes from the hospital. The child disclosed to her upon questioning, that she had been deled by Vinny, a man known to cut grass near the river. The appellant was then arrested. 4. PW3, MC, a teacher at [Pariculars Withheld] E.C.D., where the complainant went to school testied that she had observed the child on 12th June 2014 walking abnormally with legs apart. Upon interrogation, the child revealed that she had been deled. The child also emitted a bad smell at close range. The teacher called the grandmother to school. 5. PW4, MKM, a teacher at [Particulars Withheld] Primary School, corroborated PW3’s account, stating that he accompanied the grandmother and the child to Kapkangani dispensary where the doctor conrmed delement. He had received the report of the child from PW3. The matter was referred to Chepsonoi police station. 6. PW5, Silas Ruto, a clinical ocer at Kapsabet District Hospital, examined the child on 16th June 2014. He found the hymen broken, reddened, with torn parts of the labia minora, consistent with penetration. He conducted urinalysis and blood tests, which were negative for infection and venereal disease. He produced treatment notes and the P3 form. 7. PW6, Inspector Agripina Lugonzo, the investigating ocer, took over the le after her colleague was transferred. She conrmed from the recorded statements that the complainant had been deled by the appellant. He produced the complainant’s immunization card that bore no date of birth. He told the trial court that the minor had been sent to fetch water and borrow an axe, and while at the river was deled by the appellant 8. At the close of the prosecution case, the trial court found the appellant had a case to answer. In his defence, the appellant, Vincent Kerra, gave an unsworn statement. He stated that on 7th June 2014 he was herding cattle, milking cows, and later went for a walk before being arrested. He denied committing the oence. He called a defence witness Philip Madonye Lumadede who testied that the appellant was at home with him from 7 am to 9 pm on the material day and that the complainant’s grandmother had accused the appellant without any basis. 9. He added that he was with the appellant until late in the evening and that the arrest came as a surprise. He denied that he was covering up for the appellant because the appellant was his cousin. 10. Upon considering the evidence, the learned trial magistrate found the appellant guilty. The court held that the complainant’s testimony, though unsworn, was consistent and corroborated by medical evidence and the testimonies of all the prosecution witnesses. The defence of alibi was rejected as an afterthought, and unsupported by credible evidence. The trial court concluded that the prosecution had proved its case beyond reasonable doubt, convicted the appellant of delement, and sentenced him to life imprisonment as mandated under section 8(2) of the Sexual Offences Act. The appellant was treated as a rst oender, and though he sought forgiveness in mitigation, the court imposed the mandatory statutory sentence. 11. The appellant lodged a rst appeal at the High Court at Eldoret challenging his conviction and sentence, arguing that the prosecution’s evidence was contradictory and incomplete and that the oence had not been proved to the required standard, while his defence was not considered. The High Court identied the critical ingredients of delement as the age of the complainant, penetration, and positive identication of the perpetrator. The complainant’s age was established at seven years through documentary evidence and testimony, placing her within Section 8(2) of the Sexual Offences Act. Penetration was conrmed by medical examination and corroborated by the complainant’s account, while identication was clear since the complainant knew the appellant and positively recognized him https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1710/eng@2026-09-25 2

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as the assailant. The defence of alibi was rejected as inconsistent and self-serving. The High Court concluded that the prosecution had proved all elements of the oence beyond reasonable doubt, upheld the conviction, and armed the mandatory life sentence under Section 8(2), dismissing the appeal in its entirety as lacking merit. 12. The appellant, dissatised with the outcome of the rst appeal, has now lodged a second appeal raising ve principal grounds. He argues that both lower courts erred in law by convicting him on the basis of a rst complaint that was delayed by ve days without any reasonable or judicially acceptable explanation, thereby undermining the credibility of the prosecution’s narrative. He further contends that the courts failed to properly evaluate and analyze contradictions between the testimony of the minor, her guardian, and her teacher regarding the child’s physical condition, particularly how she could allegedly smell bad and walk with her legs apart ve days after the incident without her guardian noticing any anomaly. He challenges the reliance on medical examination conducted nine days after the alleged incident while the primary treatment document dated 12th June 2014 (Exhibit 2A) was withheld, arguing that this violated Sections 112 and 128 of the Evidence Act. He also submits that the courts misdirected themselves by treating the uncorroborated evidence of a single child witness of tender years as conclusive, contrary to the statutory requirement for strict verication in such circumstances. Finally, he asserts that his constitutional rights to a fair trial under Article 50(2)(n) of the Constitution were violated, as the courts failed to properly evaluate his defence and impermissibly shifted the burden of proof to him, thereby occasioning a miscarriage of justice. 13. The appellant led written submissions which he fully relied upon at the hearing of the appeal whereas the prosecution relied on written submissions led by learned Prosecution Counsel, Ms. Ndiritu. 14. The appellant submitted on issues touching on the evidentiary and constitutional foundations of the conviction. First, he argued that both lower courts erred in law by convicting him on the basis of a rst complaint that was delayed by ve days without any reasonable or judicially acceptable explanation, thereby destroying the credibility and consistency of the prosecution’s narrative. He emphasized that under Section 112 of the Evidence Act, the burden of explaining such delay lay with the prosecution, and cited Mohammed Bamusa vs Republic [2016] eKLR and Kalu vs Republic [2018] 1 KLR 244 for the proposition that unexplained delays create room for concoction and must be resolved in favour of the accused. 15. Secondly, he submitted that the courts failed to properly evaluate and analyze glaring contradictions between the testimony of PW2, PW3, and PW4 regarding the physical condition of the child, particularly how she could allegedly “smell bad” and “walk with her legs apart” ve days after the alleged act without her guardian noticing any anomaly. He relied on Williamson vs Republic [2014] eKLR and Philip Keiphas vs Republic [2018] eKLR to argue that such contradictions undermine credibility and prevent a nding of guilt beyond reasonable doubt. 16. Thirdly, the appellant contended that the courts erred by relying on medical examination conducted nine days after the alleged incident while failing to demand production of, or draw an adverse inference from, the withholding of the primary treatment document dated 12th June 2014 (Exhibit 2A). He submitted that this omission violated Sections 112 and 128 of the Evidence Act, which require continuous medical history and allow courts to presume that withheld evidence would be unfavourable to the prosecution. He cited Karanja vs Republic [2014] 1 KLR 43 and Republic vs Christopher Kipngeno [2021] eKLR to support the argument that a broken hymen observed days later without fresh trauma cannot conclusively prove delement. 17. Fourthly, he submitted that both courts misdirected themselves by treating the uncorroborated evidence of a single child witness of tender years as conclusive, contrary to Section 124 of the Evidence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1710/eng@2026-09-25 3

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Act and Section 19 of the Oaths and Statutory Declarations Act. He argued that the child’s identication of the appellant was extracted through interrogation by school authorities ve days after the alleged incident, raising a high risk of suggestion or coaching. He relied on precedents such as Gvidi vs Republic [2005] 1 KLR 333 and Kibagen vs Republic [2010] eKLR to emphasize that uncorroborated child testimony must be approached with extreme caution, especially where it is delayed or tainted by external inuence. 18. Finally, the appellant submitted that his constitutional rights under Article 50 of the Constitution of Kenya, 2010, were violated. He argued that the courts below ignored contradictions in the prosecution’s case, dismissed his defence, and shifted the burden of proof to him to explain why the child or school authorities would fabricate charges. He cited Philip Nzaka vs Republic [2015] eKLR and the foundational case of Woolmington vs Director of Public Prosecutions [1935] AC 462 to assert that the burden of proof never shifts to the accused and that the presumption of innocence is a golden thread running through criminal law. He maintained that by allowing conviction despite unexplained delays, contradictions, and withheld medical records, the courts below undermined this constitutional safeguard and occasioned a miscarriage of justice. He thus prayed that the appeal be allowed, the conviction quashed, and the sentence of life imprisonment set aside. 19. On the other side, the respondent opposed the appeal. Vide written submissions dated 11th June 2026, the respondent stated that the prosecution had proved all the elements of the oence beyond reasonable doubt. It was submitted that the element of penetration was established before the trial court through direct testimonial evidence and independent medical evidence, both of which were correctly evaluated and accepted by the trial court and thereafter by the High Court. 20. On the age of the complainant, the respondent submitted that it was properly established through multiple sources: the unsworn testimony of the child, sworn testimony of her guardian, and the immunization card produced before the trial court. The respondent emphasized that proof of age may be established by oral testimony, documentary records, medical assessment, or the child’s own account, as armed in Mwanjembe vs Republic (Criminal Appeal No. 24 of 2015) [2016] 188 (KLR). According to the respondent, the evidence consistently pointed to the complainant being seven years old at the material time, well below the statutory threshold of eleven years. The respondent therefore concluded that the nding on age was correct, rested on abundant evidence, and presented no basis for interference by this Court. 21. In response to the appellant’s grounds of appeal, the respondent submits that the contention that investigations were “shambolic” is misconceived both in fact and in law and ought to be dismissed. The respondent asserts that deciencies in the manner of police investigation, of themselves, do not entitle an accused person to an acquittal where the evidence adduced at trial is cogent, credible, and sucient to sustain a conviction. The respondent relies on DVK vs Republic (Criminal Appeal No. 102 of 2020) [2023] KECA 930 (KLR), quoting Michael Ngara Paul vs Republic [2021] eKLR, to emphasize that on a second appeal, this Court’s jurisdiction under Section 361(1)(a) of the Criminal Procedure Code is conned to issues of law, and interference with concurrent ndings of fact is only permissible where ndings are unsupported by evidence, based on misapprehension, or demonstrably perverse, as stated in Chemagong vs Republic [1984] KLR 611. 22. The respondent further submits that the appellant has failed to specify which aspects of the investigation were inadequate, how they prejudiced his defence, or how they aected the reliability of the evidence tendered. The prosecution contends that it presented four witnesses whose testimony was cogent, credible, and corroborated, and in those circumstances, an attack on investigative methodology cannot undermine the conviction. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1710/eng@2026-09-25 4

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23. On the appellant’s reliance on Section 154 of the Criminal Procedure Code, the respondent submits that the prosecution is not obliged to call every possible witness, but only those sucient to discharge the burden of proof beyond reasonable doubt. As held in F. K. N vs Republic [2016] KECA 679 (KLR), citing Bukenya & Others vs Uganda [1972] EA 549, the inference that uncalled witnesses would have been adverse arises only where the prosecution evidence is barely adequate, not where it is overwhelming. The respondent points out that the appellant has not identied which witnesses were allegedly omitted, what evidence they would have given, or how their absence occasioned a failure of justice. The respondent therefore urges this Court to dismiss this ground of appeal. 24. In response to the appellant’s third ground alleging failure to prove penetration, age, and identication, the respondent submits that each of these essential elements was comprehensively addressed and proved beyond reasonable doubt through cogent, credible, and corroborated evidence. The respondent urges that the concurrent ndings of both the trial court and the High Court on these elements are sound and present no basis for interference. 25. On the issue of alibi, the respondent argues that the law is clear: once the prosecution has placed the accused at the scene through credible evidence, the accused bears only an evidential burden to raise a defence of sucient cogency to create reasonable doubt. A bare, uncorroborated denial does not suce. Citing Mulili vs Republic (Criminal Appeal No. 90 of 2013) [2014] KECA 408 (KLR), the respondent notes that the appellant’s alibi was nothing more than a self-serving denial unsupported by witnesses or documentation, and was rightly rejected by both courts below. 26. On the constitutional argument, the respondent submits that the appellant was accorded all procedural safeguards under Article 50(2) of the Constitution of Kenya, 2010. He was informed of the charges, given the right to representation, allowed to cross-examine witnesses, testify, call witnesses, and mitigate. The rejection of his unsubstantiated denial does not amount to a violation of fair trial rights. 27. Regarding medical evidence, the respondent contends that the clinical ocer, testifying as an expert under Section 48 of the Evidence Act, made clear ndings that the complainant’s hymen was ruptured and injuries were consistent with forceful penetration. The P3 form, admitted into evidence, constituted documentary proof upon which the court was entitled to rely. The appellant oered no contrary medical evidence or alternative explanation. The respondent cites Peter vs Republic (Criminal Appeal 83 of 2017) [2024] KECA 1124 (KLR) and Bassita vs Uganda S.C. Criminal Appeal No. 35 of 1995 to arm that penetration may be proved by the victim’s testimony corroborated by medical evidence. 28. Finally, on credibility of witnesses, the respondent submits that assessment of credibility is primarily the function of the trial court, which observed the witnesses directly. Appellate courts are slow to disturb such ndings unless they are clearly unreasonable or perverse. Minor discrepancies in testimony, particularly from child or lay witnesses, do not vitiate the substance of evidence where the core aspects are consistent and corroborated. 29. On the issue of sentence, the respondent submitted that the punishment of life imprisonment was lawfully imposed pursuant to Section 8(2) of the Sexual Offences Act, No. 3 of 2006. That provision is couched in mandatory terms, leaving no discretion to the sentencing court, and prescribes that a person convicted of delement of a child below eleven years “shall be liable to imprisonment for life.” The respondent emphasized that although the appellant was a rst oender, mitigation is irrelevant in the context of a mandatory sentence, since the legislature has already determined the penalty. The https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1710/eng@2026-09-25 5

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trial court therefore had no lawful alternative but to impose life imprisonment, and the High Court was correct in arming it. 30. In support of this position, the respondent cited the Supreme Court decision in Republic vs Ayako (Petition No. E002 of 2024) [2025] KESC 20 (KLR), where the Court held that the Court of Appeal had no jurisdiction to substitute a term sentence for life imprisonment, as doing so would amount to legislating without authority. The respondent concluded by urging this Court to uphold both the conviction and sentence and to dismiss the appeal in its entirety. 31. The jurisdiction of this Court in a second appeal is strictly conned to matters of law. Section 361(1) (a) of the Criminal Procedure Code provides that: “ A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this sectiona. 32. on a matter of fact, and severity of sentence is a matter of fact;” This principle has been consistently armed. In Karingo vs Republic [1982] KLR 213, the Court stated: “ A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could nd as it did..." 33. Similarly, in M’Riungu vs Republic [1983] KLR 455, the Court emphasized: “ Where a right of appeal is conned to questions of law, an appellate court has loyalty to accept the ndings of fact of the lower court(s) and resist the temptation to treat ndings of fact as holdings of law or mixed ndings of fact and law and it should not interfere with the decision of the trial or rst appellate court unless it is apparent that on the evidence, no reasonable tribunal could have reached that conclusion..." The court therefore approaches this appeal mindful that its duty is limited to interrogating points of law, and not to re-evaluate or re-assess factual ndings unless they disclose an error of law. In the discharge of this solemn mandate, we have painstakingly retraced the entire record from the trial court through the rst appellate court, laboring to distill the substance of the dispute and to ensure that no material aspect of the proceedings has been overlooked. This Court is conscious that its pronouncements must rest upon a rm legal foundation, and accordingly, we have subjected the factual narrative to rigorous scrutiny, not for purposes of re-litigation, but to ascertain whether the conclusions reached below withstand the test of legality. In so doing, we have endeavored to reach the root of the controversy, mindful that justice is not served by supercial examination but by a thorough and principled interrogation of the record, guided at all times by the statutory framework and binding precedent. 34. From the record and submissions, two issues arise for determination: whether the prosecution proved the case against the appellant to the required standard, and whether the sentence imposed was legal. 35. On the rst issue, the concurrent ndings of the trial court and the rst appellate court were that the prosecution evidence was credible and sucient. On a second appeal, this Court cannot revisit https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1710/eng@2026-09-25 6

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the factual matrix unless it is demonstrated that the ndings were based on no evidence or on a misapprehension of the law. 36. In David Njoroge Macharia vs Republic [2011] eKLR, the Court held: “ That being so only matters of law fall for consideration – see section 361 of the Criminal Procedure Code. As this Court has stated many times before, it will not normally interfere with concurrent ndings of fact by the two courts below unless such ndings are based on no evidence... – see Chemagong vs R [1984] KLR 611." 37. The oence of delement is anchored in Section 8 of the Sexual Offences Act, 2006, which stipulates three essential ingredients that must be proved beyond reasonable doubt: the age of the complainant, proof of penetration, and identication of the perpetrator. The age of the complainant is a critical element, as it determines both liability and the applicable sentence. This principle is rooted in the persuasive decision of the Court of Appeal of Uganda in Francis Omuroni vs Uganda (Criminal Appeal No. 2 of 2000), which has been consistently adopted by Kenyan courts. The court emphasized that whatever the nature of evidence presented in proof of a victim's age, it must be credible and reliable. In the present case, the complainant’s age was established through the testimony of the child herself who testied that she was 7 years old and that of Grace Alivitsa, the guardian who testied that she was born on 15th August 2008. She produced a clinical card in this respect. It was common cause that she was a child of tender age attending ECD class or nursery school. Although the immunization card did not bear the date of birth, it clearly shows that the complainant received vaccination given to a child below 1 year on 15th August 2008 and therefore as at 7th June 2014, the date of the oence, she was only 7 years old. This documentary evidence corroborated the testimony of the child and the guardian and the two courts below did not err in their nding on the age of the complainant. 38. Penetration is dened under Section 2 of the Act as “the partial or complete insertion of the genital organs of a person into the genital organs of another.” In Mark Oiruri Mose vs Republic [2013] eKLR, the Court of Appeal clearly dened the threshold for penetration, stating that: ...penetration does not mean penetration deep inside... Surface penetration is sucient and it is not a requirement that there must be semen or spermatozoa.” 39. In the current case, medical evidence conrmed penetration, and the complainant’s testimony was consistent and credible, thereby proving this element beyond reasonable doubt. 40. Identication of the perpetrator is equally essential. It is trite law that where a conviction rests on the evidence of identication, the court is enjoined to examine such evidence with caution to satisfy itself that the circumstances were favorable and free from the possibility of error (see Wamunga vs Republic [1989] KLR 424 and Francis Kariuki Njiru vs Republic [2001] eKLR). In this case, the complainant positively identied the appellant, and her testimony was corroborated by circumstantial evidence linking him to the oence. 41. Taken together, these three ingredients were each proved in accordance with the law and binding precedent, thereby establishing the oence of delement to the requisite legal standard. 42. Applying the legal principle on second appeals, the record discloses that the trial court properly directed itself on the burden of proof and the elements of the oence. The High Court, sitting on rst appeal, re-evaluated the evidence and armed those ndings. No misdirection of law has been demonstrated. Accordingly, the case was proved in law. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1710/eng@2026-09-25 7

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43. On the second issue, sentencing is a matter of law only where the sentence imposed is either illegal or outside the statutory framework. Sentencing in delement matters is governed by Section 8 of the Sexual Offences Act, 2006, which prescribes specic and graduated penalties depending on the age of the victim. Section 8(1) provides that a person who commits an act of delement with a child is guilty of an oence, while Section 8(2) stipulates that if the child is eleven years or less, the oender shall be sentenced to imprisonment for life. Section 8(3) prescribes that if the child is between twelve and fteen years, the oender shall be sentenced to imprisonment for a term of not less than twenty years, and Section 8(4) provides that if the child is between sixteen and eighteen years, the oender shall be sentenced to imprisonment for a term of not less than fteen years. This Court has consistently emphasized that these sentences are statutory minimums, and courts must adhere to them unless constitutional principles dictate otherwise. It is a rmly settled principle of law that the mandatory minimum sentences prescribed under the Sexual Offences Act are constitutional, and courts have no discretion to sentence a convict below these statutory baselines. In Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), the Supreme Court settled the sentencing conict by clarifying that the Muruatetu framework is strictly limited to murder cases. The Apex Court held that statutory minimums for sexual oences do not violate the doctrine of separation of powers, and the Court of Appeal errs when it departs from the strict penalties mandated by the Legislature. The sentence is therefore lawful and proper, and the appeal on sentence fails. 44. The appeal before this Court is manifestly barren of merit, having failed to disclose any error of law in either conviction or sentence. The statutory ingredients of the oence of delement were each proved to the hilt, the conviction is rmly anchored in Section 8 of the Sexual Offences Act and fortied by binding precedent, and the imposed sentence accords with the mandatory statutory framework as armed by both this Court and the Supreme Court. 45. In the premises, the appellant’s challenge collapses under the weight of incontrovertible legal authority. The court nds nothing to cause it to disturb the concurrent ndings of the two courts below, which remain sound in both law and principle. The appeal is therefore devoid of substance, bereft of any redeeming merit, and is hereby dismissed in its entirety. The conviction and sentence stand undisturbed. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. JAMILA MOHAMMED ................... JUDGE OF APPEAL NDUMA NDERI ................... JUDGE OF APPEAL L. M. NDOLO ................... JUDGE OF APPEAL I certify that this is a true copy of the original. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1710/eng@2026-09-25 8

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Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1710/eng@2026-09-25 9

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