Geoffrey Kibet Kirui v Republic

Evidence before the trial court 5. The prosecution called six witnesses. The complainant testied as PW1. Her evidence was that on the material day, while walking home from school, she encountered the appellant, whom she knew. According to her, the appellant asked her to follow him so that he could do "kitu tamu" to her. When she refused, he took hold of her and led her into a nearby tea plantation. 6. The complainant testied that the appellant removed her skin- tight trousers and underwear and sexually assaulted her. She experienced pain, cried and thereafter went home, where she immediately reported what had happened to her mother, PW2. 7. PW2 testied that the complainant arrived home crying and disclosed that she had been sexually assaulted. Upon examining the child's clothes, PW2 noticed what she described as an unusual whitish discharge. She informed her husband, PW3, and the child was subsequently taken for medical examination. The matter was also reported to the police. 8. PW2 produced the complainant's birth certicate, which indicated that she had been born on 21st October 2011. 9. PW3 conrmed receiving information from PW2 concerning the assault. After the complainant had been taken for medical attention, the appellant was apprehended with the assistance of members of the public. 10. PW4, Kipyegon Alex Ngetich, a clinical ocer, examined the complainant. His examination revealed that the vaginal wall was hyperaemic although the hymen was intact. He formed the opinion that there had been partial penetration. A vaginal swab did not reveal spermatozoa. 11. Corporal Agnes Mueni, PW6, investigated the complaint. She received the report, recorded the relevant statements and subsequently received the appellant after he had been apprehended. 12. Placed on his defence, the appellant denied committing the oence. His case was that he had previously cohabited with the complainant's mother for approximately four months and that the accusation had been fabricated against him because he was attempting to reconcile with his wife. He maintained that his arrest was therefore motivated by a personal grudge. 13. The trial court rejected that defence, found the charge of delement proved beyond reasonable doubt, convicted the appellant and sentenced him to life imprisonment. The rst appeal 14. On appeal, the High Court reconsidered the evidence and upheld the ndings of the trial court. The learned Judge was satised that the prosecution had proved the complainant's age, penetration and the appellant's identity as the perpetrator. 15. The learned Judge also upheld the trial court's reliance upon the complainant's evidence and found that the requirements of section 124 of the Evidence Act had been satised. 16. Dissatised with those concurrent ndings, the appellant lodged the present appeal. The appeal before this Court 17. The appellant's complaints, stripped of repetition, raise two substantive questions: rst, whether the courts below erred in law in concluding that the ingredients of delement had been proved beyond reasonable doubt; and secondly, whether the appellant's defence was properly considered. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1832/eng@2026-09-25 2

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18. The appellant maintained that penetration had not been proved and that the evidence as a whole was insucient to sustain his conviction. He further contended that the two courts below failed to accord proper consideration to his defence. 19. The respondent, through learned prosecution counsel, opposed the appeal and urged us to uphold the concurrent ndings of the trial court and the High Court. Jurisdiction on a second appeal 20. Before considering those complaints, it is necessary to delineate our jurisdiction. This is a second appeal and, by virtue of section 361(1) of the Criminal Procedure Code, our jurisdiction is conned to matters of law. 21. The governing principle is settled. In Chris Kasamba Karani v Republic [2010] KECA 478 (KLR), this Court armed that on a second appeal it will not ordinarily interfere with concurrent ndings of fact unless it is demonstrated that the courts below considered matters they ought not to have considered, failed to consider matters they ought to have considered, or, upon the evidence as a whole, reached a conclusion that was plainly wrong. In such circumstances the resulting error assumes the character of an error of law. 22. Accordingly, it is not the function of this Court to undertake a third evaluation of the evidence merely because another factual conclusion might conceivably have been reached. Our inquiry is whether the concurrent ndings complained of disclose an error of law within the meaning of section 361. Ingredients of delement 23. Section 8(1) of the Sexual Offences Act provides that a person who commits an act which causes penetration with a child commits the oence of delement. 24. In a prosecution for delement, the prosecution must therefore establish beyond reasonable doubt three essential matters: that the complainant was a child of the age alleged or falling within the relevant statutory age bracket; that penetration occurred; and that the accused person was the perpetrator. 25. We consider each of those elements only to the extent necessary to determine whether the concurrent conclusions of the courts below disclose an error of law. Age 26. The complainant's birth certicate was produced in evidence. It established her date of birth as 21st October 2011. The oence was committed on 21st July 2017. She was therefore ve years old at the material time. 27. The appellant has demonstrated no legal basis upon which the concurrent nding concerning age can be disturbed. The complainant plainly fell within the category contemplated by section 8(2) of the Sexual Offences Act. Penetration 28. The principal challenge relates to penetration. The appellant relies substantially upon the fact that the medical examination disclosed an intact hymen and that no spermatozoa were detected. 29. That argument proceeds from an incorrect understanding of what constitutes penetration for purposes of the Sexual Offences Act. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1832/eng@2026-09-25 3

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30. 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. Complete vaginal penetration is therefore unnecessary. The statutory oence is established once the requisite partial penetration is proved. 31. Consequently, the fact that the hymen remained intact was not, without more, inconsistent with penetration as statutorily dened. Neither was the absence of spermatozoa determinative. 32. The evidence of PW4 was that the complainant's vaginal wall was hyperaemic and that, in his professional opinion, the ndings were consistent with partial penetration. That evidence was considered alongside the complainant's direct account of what the appellant had done to her. 33. The two courts below were therefore entitled to conclude that penetration had been established. We discern no error of law in that conclusion. 34. There is a related evidential consideration. The proviso to section 124 of the Evidence Act creates an exception in prosecutions involving sexual oences. A court may convict upon the evidence of the alleged victim notwithstanding the absence of corroboration, provided that the court believes the victim and records the reasons for that belief. 35. The legal position is therefore not that medical evidence must invariably corroborate a complainant before a conviction for delement can stand. Medical evidence is important where available and may substantially strengthen the prosecution case, but the law permits a conviction upon credible victim testimony satisfying the proviso to section 124. 36. In the present case, there was more than the complainant's account. Her evidence concerning the assault was supported by her immediate report to her mother and by the medical ndings made shortly thereafter. Those matters materially reinforced the prosecution case. Identity of the perpetrator 37. The next question is whether the appellant was proved to have been the perpetrator. 38. This was not a case of identication of a stranger in dicult circumstances. The evidence accepted by the courts below was that the complainant knew the appellant before the incident. Her identication was therefore one of recognition. 39. PW2 and PW3 similarly knew the appellant. The appellant himself did not suggest that he was a stranger to the family. Indeed, his defence was founded upon an alleged prior relationship with PW2. 40. In those circumstances, the real issue was not whether the complainant could identify the appellant, but whether her accusation against him was truthful. Both the trial court, which had the advantage of seeing and hearing the witnesses, and the rst appellate court were satised that it was. 41. No misdirection in law has been demonstrated that would entitle this Court to disturb that concurrent conclusion. The appellant's defence 42. The appellant further complains that his defence was not properly considered. An accused person bears no obligation to prove his innocence. The burden remains throughout upon the prosecution to establish guilt beyond reasonable doubt. A defence need only raise a reasonable doubt in the prosecution case to entitle an accused person to an acquittal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1832/eng@2026-09-25 4

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43. The appellant's defence was that the charge was fabricated because he had previously cohabited with PW2 and was attempting to reconcile with his wife. 44. Contrary to the appellant's complaint, the defence was considered by both courts below. It was rejected upon being weighed against the prosecution evidence. 45. Of particular signicance was the fact that the allegation of a prior intimate relationship and resulting grudge was not materially put to PW2 during cross-examination so as to aord her an opportunity to respond to it. The courts below were entitled to take that circumstance into account when assessing the weight of the defence subsequently advanced. 46. More fundamentally, the alleged disagreement with PW2 did not explain away the complainant's direct evidence, her immediate complaint following the incident and the medical ndings. The courts below found that the defence did not raise a reasonable doubt. 47. We nd no error of law in the manner in which the defence was treated. Whether the conviction is safe 48. Viewed within the connes of our jurisdiction under section 361 of the Criminal Procedure Code, the appellant has not demonstrated that the courts below relied upon irrelevant considerations, disregarded material evidence, misapprehended the applicable law or reached concurrent ndings unsupported by the evidence. 49. The complainant's age was established by documentary evidence. Penetration was established through her evidence considered together with the medical ndings. Her recognition of the appellant was accepted by both courts below, and the appellant's defence was considered and rejected. 50. We are consequently satised that the conviction for delement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act was founded upon evidence meeting the requisite standard of proof. Sentence 51. The appellant was sentenced to life imprisonment under section 8(2) of the Sexual Offences Act. The complainant was ve years old. 52. Section 361(1)(a) of the Criminal Procedure Code provides that on a second appeal the severity of sentence is a matter of fact and therefore does not, by itself, constitute a ground upon which this Court may entertain an appeal. 53. More importantly, the Supreme Court has since pronounced itself on the sentencing regime under the Sexual Offences Act in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR). 54. The Supreme Court cautioned against the blanket extension of the reasoning in Francis Karioko Muruatetu & Another v Republic to sentencing provisions under the Sexual Oences Act and reiterated that a sentence imposed pursuant to section 8 remains lawful for so long as that statutory provision remains valid. 55. No independent question of law has been demonstrated before us upon which interference with the sentence imposed by the trial court and armed by the High Court would be warranted. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1832/eng@2026-09-25 5

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Disposition 56. In the result, we nd that the appellant has not demonstrated any error of law warranting interference with the concurrent ndings of the two courts below. The appeal against conviction is accordingly dismissed. 57. The sentence of life imprisonment imposed upon the appellant pursuant to section 8(2) of the Sexual Offences Act and armed by the High Court is upheld. 58. These shall be the orders of the Court. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER, 2026. J. MATIVO .................................. JUDGE OF APPEAL MURUNGI B. KAIRARIA .................................. JUDGE OF APPEAL AHMED ISSACK ................................. 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/2026/1832/eng@2026-09-25 6

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