Dancan Luseno Luciano v Republic

3. At the hearing of the appeal on 24th February 2026, the Appellant appeared in person and relied entirely on his written submissions. Ms. Vistengwa, learned Counsel for the Respondent, opposed the appeal and relied on the Respondent's written submissions dated 19th February 2026, which she highlighted orally. 4. This being a second appellate court, our jurisdiction is circumscribed by Section 361(1)(a) of the Criminal Procedure Code, which connes us to matters of law only. We cannot interfere with concurrent ndings of fact by the trial court and the rst appellate court unless such ndings are based on no evidence, or are so perverse that no reasonable tribunal would have reached them, or are based on a misapprehension of the evidence. This position was succinctly stated in Njoroge v Republic [1982] KLR 388 and Kaingo v Republic [1982] KLR 213. 5. We have carefully considered the record of appeal, the submissions by both parties, and the oral highlights by Ms. Vistengwa. The core issue that attracted the attention of this Court is whether the evidence established partial penetration, as opposed to merely an attempt to penetrate, sucient to sustain the conviction for delement. 6. On the issue of penetration, the Appellant submitted that the medical evidence was contradictory and, at best, pointed to an "attempt" to penetrate rather than actual penetration. He relied heavily on the testimony of PW5, Dr. Ngatia, who examined the complainant two days after the incident and noted that the hymen was intact, and that the pain on the introitus could have been caused by a blunt object "trying to penetrate." 7. We have considered the legal threshold for penetration under the Sexual Offences Act. Section 2 of the Act denes "penetration" to mean "the partial or complete insertion of the genital organs of a person into the genital organs of another person." The inclusion of the word "partial" is deliberate and signicant. It denotes that the law does not require the hymen to be broken or for complete insertion to have occurred for the oence of delement to be established. 8. Turning to the evidence, PW1, the complainant, who was subjected to a voir dire examination and found to understand the nature of an oath, testied in unequivocal terms that the Appellant inserted his penis into her vagina. She stated: “ He removed his trouser and he removed his chuchu i.e. he used it to urinate. He then did bad manners to me. He inserted his thing into mine i.e. my vagina." 9. This evidence was not shaken under cross-examination. Both the trial court and the rst appellate court found her testimony credible and believed her account. 10. Regarding the medical evidence, PW5, Dr. Ngatia of Nairobi Women’s Hospital produced the medical report (Exhibit 2) prepared on 27th December 2012. He testied that upon examination, the genitalia was normal, the hymen was intact, but there was "pain tenderness on the introitus (entry of vagina)." A diagnosis of sexual assault was made. PW4, Dr. Joseph Maundu, the police surgeon who examined the child approximately three months later on 26th March 2013, produced the P3 form (Exhibit 3) in which he noted that the "hymen was missing." 11. During the hearing, we expressed concern to the Respondent’s Counsel as to whether the phrase "trying to penetrate" used by PW5, coupled with an intact hymen, reduced this matter to one of attempted delement. While PW5 used the phrase "trying to penetrate" when explaining the possible cause of the tenderness, the physical nding of "pain and tenderness on the introitus," which is the exact anatomical point of entry, coupled with the clear, unshaken testimony of PW1 that insertion occurred, in our view, satises the legal denition of partial penetration. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1815/eng@2026-09-25 2

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12. The circumstances of the case strongly support this conclusion. The act was interrupted by PW2, who is the complainant's father. He forced the door open, prompting the child to run out holding her panty, while the Appellant was found with his zip open. This interruption adequately explains why the penetration was only partial, why the hymen remained intact at the rst examination, and why there was tenderness at the point of entry. As was held in Mark Oiruri Moya v Republic [2013] eKLR, penetration need not be deep inside the organ; so long as there is penetration on the surface, the ingredient is demonstrated. We are therefore satised that the element of penetration was proved to the required legal standard. 13. On the second issue, the Appellant argued that the trial magistrate failed to record sucient reasons for believing the victim as required by the proviso to section 124 of the Evidence Act. Section 124 empowers a court to convict on the sole evidence of a victim of a sexual oence, provided the court records reasons for being satised that the victim is telling the truth. 14. The trial court conducted a voir dire examination and recorded that the minor understood the need to tell the truth. In its judgment, the trial court found that "the evidence of the minor is clear and very consistent." The rst appellate court evaluated this and found no error, noting that the minor's testimony was corroborated by her father, PW2, who found the Appellant in a compromising state. The question of whether a trial court suciently captured the reasons under section 124 is a question of law. Having perused the record, we are satised that the reasons were implicitly and explicitly captured in the evaluation of the minor's consistency and the surrounding circumstances. This aligns with the holding in J.W. A v Republic [2014] eKLR. This ground, therefore, lacks merit. 15. On the third issue regarding the Appellant’s defence and evidentiary technicalities, the Appellant raised objections on the admissibility of the medical report produced by PW5 under Sections 65, 66, 68, and 147 of the Evidence Act. He also pointed out alleged contradictions in the prosecution's case, such as whether the victim lay on a bed or a mattress on the oor. 16. As regards the production of the medical report, no objection was raised at the trial court when PW5 produced it. In the circumstances of this case, we are unpersuaded that the Appellant can successfully impeach the admissibility of that document for the rst time on second appeal, particularly where no foundational objection was raised before the trial court. We nd this ground to be an afterthought and dismiss it accordingly. 17. In respect of the alleged contradictions on whether the victim lay on a bed or a mattress on the oor, these are minor discrepancies that do not materially aect the core narrative of who deled the child and where. Furthermore, the rejection of the Appellant’s defence where he claimed the complainant was in his house to return a plate and that he was being framed was no doubt a matter of fact. The rst appellate court re-evaluated the evidence and concluded that the minor was truthful and that the Appellant's defence was an afterthought meant to explain away the incriminating circumstances. We have no basis to interfere with these concurrent ndings of fact. As is well established, including in Karanja v Republic [1983] KLR 501, the trial court, having had the advantage of seeing and hearing the witnesses testify, was best placed to assess their credibility, subject to the rst appellate court’s duty to independently re-evaluate the evidence. 18. Finally, the Appellant challenges the sentence of life imprisonment. Under Section 8(2) of the Sexual Offences Act, upon conviction for delement of a child aged 11 years or less, the sentence prescribed is life imprisonment. This is a mandatory sentence. 19. Section 361(1) of the Criminal Procedure Code provides that this Court has no jurisdiction to interfere with the severity of a sentence meted out by the trial court and upheld by the rst appellate court, unless https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1815/eng@2026-09-25 3

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the sentence is illegal or enhanced by the High Court. As correctly submitted by the Respondent, relying on Republic v Joshua Gichuki Mwangi & 4 Others [2024] KESC 34 (KLR), questions relating purely to sentence severity are generally outside the remit of a second appeal. In the present case, the sentence imposed was in accordance with the law, and we discern no error of law in its imposition. 20. From the foregoing, we are satised that the evidence on record supported the concurrent ndings of fact by the two courts below. We are of the settled view that the legal threshold for penetration, inclusive of partial penetration, was met. The Appellant has not demonstrated any error of law that would warrant our interference with the judgment of the High Court. 21. Consequently, we nd this appeal to be devoid of merit and hereby dismiss it in its entirety. The conviction and sentence of the trial court, as upheld by the High Court, are hereby armed. Orders accordingly. DATED & DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. O. KIAGE JUDGE OF APPEAL .................................. JOEL NGUGI JUDGE OF APPEAL .................................. R. NGETICH JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1815/eng@2026-09-25 4

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