Titus Andole Luvembe v Republic

to the outside toilet, she was approached by the appellant, her neighbour known as ‘Baba Collins’. He led her behind the toilet, held her hand, undressed her, made her lie down, and inserted his penis into her vagina. This was, she said, the fifth such incident, the abuse having begun in 2021. She did not cry out, as he had threatened to kill her if she did. 5. The appellant would signal her by throwing a stone onto the family’s corrugated iron roof. On this occasion, her mother (PW2) discovered him on top of her. A struggle ensued, he overpowered PW2 and fled, leaving behind a grey sweater, light green t-shirt, and white vest, escaping wearing only his trousers. 6. The incident was promptly reported to the police, and PW1 was taken to hospital. She further stated that the appellant’s wife was aware of the ongoing abuse. 7. PW2 corroborated that PW1 had been missing for over 20 minutes that evening. Accompanied by her husband (PW5), she searched and found PW1 and the appellant half-naked together. A struggle followed and the appellant fled, abandoning his upper clothing. PW1 then disclosed the previous incidents of sexual abuse. PW5 confirmed finding the appellant in the act with his daughter. 8. Medical evidence, adduced through PW3 (John Njuguna) through the P3 and PRC forms prepared by the unavailable examiner Calvin Oluoch, showed no fresh bruises but an old hymenal tear that had healed. 9. PW4 (Dorcas Wanjiku), a neighbour, heard screams and saw PW2 chasing the appellant after the struggle. PW6 (Charles Kingatwa), the landlord, confirmed that PW1’s family and the appellant a caretaker were neighbours and tenants at the premises. 10. PW8 (PC Hellen Musyoka), the investigating officer, recorded statements and summarised the prosecution case. PW9 (PC Gerald Omuse) arrested and charged the appellant. 11. In his sworn defence, the appellant asserted that PW2 was his girlfriend and that the dispute arose from money he had lent her, which she refused to repay. He denied being at the premises on the material day. On his return, his son reported an attack by three women. While seeking reconciliation through a priest, he was arrested. He denied committing the offence. 12. After a full trial, the appellant was convicted accordingly. The appeal was canvassed by way of written submissions which have been duly considered which have been duly considered and there is no need to rehash. 13. To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under section 2 of the Act means "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 14. Further, section 8(1) and (3) of the Sexual Offences Act, No. 3 of 2006 provides thus: Defilement 15. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (3) A person who commits an offence of defilement with a child between the ages of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. The elements of the offence of defilement contrary to section 8(3) of the Sexual Offences Act, No. 3 of 2006, are the age of the complainant, penetration of her genital organ by the perpetrator’s penis, and the identity of the perpetrator. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/231/eng@2026-01-21 2

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16. As to age, the complainant (PW1) testified that she was 14 years old at the time of the offence in 13th March 2023. The birth certificate produced indicated that she was born on 3rd November 2008. There was therefore no doubt that the complainant was a child aged fourteen (14) years at the time of the offence. 17. On the element of penetration, PW1 gave direct and unequivocal evidence that the appellant undressed her behind the toilet, made her lie down, and inserted his penis into her vagina. This was the fifth such act, she stated, the abuse having commenced in 2021. Her testimony was corroborated by the medical evidence adduced through PW3 (John Njuguna), based on the P3 and PRC forms prepared on or about the material date, which revealed an absent hymen with old healed tears consistent with repeated penile penetration. No fresh bruises were noted, but the condition of the hymen supported the history of prior and recent intercourse. 18. The recovery of the appellant’s abandoned clothing, a grey sweater, light green t-shirt, and white vest at the scene, where he fled wearing only trousers after PW2 discovered him on top of PW1, further confirms the occurrence of sexual intercourse on that occasion. The element of penetration is therefore established beyond reasonable doubt. 19. On identification, PW1 testified that she knew the appellant well as her neighbour, known as ‘Baba Collins’, and the caretaker. He had signalled her repeatedly by throwing stones onto the family’s corrugated iron roof to summon her. On the material night of 13th March 2023, she clearly recognised him during the act. Her identification was immediately reinforced when PW2 and PW5 discovered him in the act, struggled with him, and saw him flee half-dressed. PW6 (the landlord) confirmed the appellant’s tenancy and role as caretaker, placing him firmly within the neighbourhood. PW4 (a neighbour) heard screams and observed PW2 chasing the fleeing appellant. 20. The appellant’s defence was a bare denial. He claimed PW2 was his girlfriend, that the dispute arose from an unpaid loan, and that he was absent from the premises that evening, only learning later of an alleged attack by three women. He suggested mistaken identity or fabrication. This version is wholly implausible and unsupported by any evidence. It raises no reasonable doubt against the cogent, consistent, and mutually corroborative prosecution case, which was proved beyond reasonable doubt. 21. The prosecution therefore proved each element of the offence under section 8(3) beyond a reasonable doubt. The conviction is safe, and the appeal against the conviction must fail. 22. The appellant was sentenced to twenty (20) years’ imprisonment for defilement under Section 8(3) of the Sexual Offences Act, No. 3 of 2006. The trial court considered the appellant’s mitigation, and his status as a first offender in determining the sentence and exercised discretion. I see no reason to interfere with the sentence. 23. In the end, the appeal is found to be lacking in merit and is dismissed in its entirety. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 21ST DAY OF JANUARY 2026 ______________ D. KAVEDZA JUDGE In the presence of: Appellant Present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/231/eng@2026-01-21 3

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Mutuma for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/231/eng@2026-01-21 4

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