Koech v Republic

and she had no other clothes on; the Appellant’s trousers were below the knees. PW3 screamed, locked the appellant inside the house and held onto him when he attempted to escape through a window. 5. Paul Kipkemoi Chepkwony (PW1), a boda-boda operator, responded to the screams, found the appellant inside the house with the young child, and assisted in taking him to Litein Police Station. 6. Sergeant Wilter Maiko (PW4) received the Appellant and the complainant at the station, escorted them to Kapkatet Hospital, issued a P3 form and produced the complainant’s clinical card showing her date of birth as 26th October 2006. 7. George Ouma (PW5), a clinical ocer at Kapkatet Hospital, examined the complainant on 13th July 2014. He found no external injuries but noted that the hymen was broken and there was positive clinical evidence of penetration. He produced the P3 form. 8. In his defence the appellant denied the charges and stated that he was arrested while returning home from work at a quarry. The trial court convicted the appellant of the main charge of delement and sentenced him to life imprisonment. 9. On rst appeal to the High Court at Bomet (Muya, J.), the conviction and sentence were upheld. The learned Judge found that the age of the complainant had been proved, that penetration had been established by medical evidence, that the appellant had been positively identied by PW1, PW2 and PW3 in broad daylight, and that the prosecution case had been proved beyond reasonable doubt. 10. Dissatised, the appellant lodged the present second appeal. Grounds of Appeal and Submissions 11. 12. The appellant, who appeared in person, challenged the concurrent ndings of the two courts below on the grounds, inter alia, that: a. The prosecution evidence was inconsistent, uncorroborated, speculative and insucient; b. The medical evidence established penetration but did not identify the perpetrator; c. Crucial eyewitnesses were not called; and d. His defence was improperly dismissed. The Respondent, through learned counsel Mr A.J. Omutelema, opposed the appeal, submitting that the elements of the oence had been proved beyond reasonable doubt, that there were concurrent ndings of fact by the two courts below which ought not to be disturbed, and that the appellant had been found in agrante delicto. Jurisdiction on Second Appeal 13. This Court’s jurisdiction on a second appeal is circumscribed by section 361(1) of the Criminal Procedure Code. The Court may only entertain matters of law. Severity of sentence is a matter of fact. Concurrent ndings of fact by the trial court and the rst appellate court will not be disturbed unless it is demonstrated that the courts below considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision so that the error becomes a matter of law (see Chris Kasamba Karani v Republic [2010] eKLR and Kalameni v Republic [2003] eKLR). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1833/eng@2026-09-25 2

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Analysis and Determination 14. The ingredients of the oence of delement under section 8(1) as read with section 8(2) of the Sexual Offences Act are well settled: i. Penetration; ii. The age of the complainant (under 11 years for the enhanced penalty under section 8(2)); and iii. The identity of the perpetrator. 15. On the question of age, the clinical card produced by PW4 established that the complainant was born on 26th October 2006. The oence having been committed on 11th July 2014, she was eight years old. Both courts below correctly so found. 16. On penetration, the clinical ocer (PW5) examined the complainant two days after the incident and found the hymen broken with positive clinical evidence of penetration. The purpose of a medical examination of the victim in a sexual oence case is primarily to establish whether penetration occurred. It is not, unless DNA evidence or an examination of the suspect is involved, required to identify the perpetrator (see Maina v Republic [2024] KECA 759 (KLR)). The medical evidence therefore suciently corroborated the complainant’s account of penetration. 17. On identication, the appellant was well known to both the complainant and her mother (PW3), being a cousin of PW3. The incident occurred in broad daylight. PW3 found the appellant in the act, strangling the complainant whose clothing was partially removed while the appellant’s trousers were lowered. PW1 arrived shortly thereafter and found the appellant still at the scene. The two courts below correctly concluded that there was no possibility of mistaken identity and that the appellant was found in agrante delicto. 18. The contention that the prosecution failed to call crucial eyewitnesses is without merit. PW1 and PW3 were eyewitnesses to the immediate aftermath of the assault and their evidence was consistent with that of the complainant. The prosecution is not obliged to call every conceivable witness; it is sucient that the evidence called proves the charge beyond reasonable doubt. 19. The appellant’s bare denial was considered and properly rejected by both courts below. It did not displace the cogent and consistent prosecution evidence. 20. We have carefully re-evaluated the record within the limited scope of a second appeal. We nd no error of law in the concurrent ndings of the trial court and the High Court. The conviction is safe. 21. As regards sentence, life imprisonment is the mandatory sentence prescribed by section 8(2) of the Sexual Offences Act for delement of a child aged eleven years or less. Severity of sentence is a matter of fact over which this Court has no jurisdiction on a second appeal unless the sentence was enhanced by the High Court or the subordinate court lacked power to impose it (section 361(1)(b) of the Criminal Procedure Code). Neither circumstance arises here. 22. We are further satised that the appellant’s fair-trial rights under Articles 25, 49 and 50 of the Constitution of Kenya, 2010 were observed. He was informed of the charge, given an opportunity to challenge the evidence, and presented his defence. Disposition 23. The appeal lacks merit and is hereby dismissed. The conviction and sentence of life imprisonment are upheld. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1833/eng@2026-09-25 3

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24. Orders accordingly. 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/2026/1833/eng@2026-09-25 4

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