Jkn v Republic

5. The appeal is premised on the grounds that: 1. That the learned magistrate failed in law and fact by failing to note that the prosecution witnesses failed to prove the truth of the allegations; 2. That the learned magistrate failed in law and fact by failing to note that the appellant was not in any way connected with the complainant; 3. That the learned magistrate failed in law and fact by failing to note that the adduced prosecution evidence did not corroborate what could have been the full investigation; and 4. That the learned magistrate failed in law and fact when he failed to note the prosecution’s irregularities in the case. Summary of the Evidence at the Trial 6. PW1 was the victim who stated that she was in Primary School grade 4. She testified that the appellant is her uncle. The incident occurred on a Sunday when she had just returned from church and went to the home of the accused to visit her cousin. When she arrived, she found the appellant and her cousin who left for church soon afterward. She was left in the compound with the appellant. She asked the appellant for the Kshs.15/= which he had promised her but instead of giving her the money, he pulled her into a one roomed house, despite her resistance. 7. She testified that while in his house, the appellant partially removed her underwear to her knees, and inserted his fingers into her vagina (the part used to urinate). He then laid her on a bed and inserted his penis into her vagina. She returned home and informed her mother about what had happened. Her parents took her to the police station and reported the matter before she was taken to the hospital for treatment and examination. In cross-examination, she stated that during the incident, she screamed. She did not inform her uncle about the incident as he was not at home. That the appellant found her washing clothes at the river after the incident. 8. PW2 was the victim’s mother who testified that PW1 was 9 years old at the time of the incident. She produced the victim’s birth certificate as proof. It was her evidence that she had left PW1 alone at home with instructions that she should wash her uniform. When she returned from church, she found PW1 crying and that is when she learned of the incident. PW1 told her that she had been defiled by the appellant. She notified her husband of the incident and, together, they reported the matter to the police station. They took PW1 to the hospital where she was examined and treated. 9. PW3 was the victim’s father who stated that on the day of the incident, he had left PW1 and PW2 at home and had gone to church earlier. After the church service, he stayed on until 7pm, when he received a phone call from PW2 informing him of the incident as narrated to her by PW1. They reported the matter at Kathanje Police Station before taking the child to Mbeere District Hospital for examination and treatment. They obtained a P3 form after the examination. In cross-examination, he stated that PW1 indicated that it was the appellant who had defiled, and that she knows him well. That PW1 was not wearing a short dress when she went to the appellant’s home. 10. PW4 was Sgt. James Karago of Kathanje Police Station. He stated that PW1, PW2 and PW3 reported the incident at the police station on the same day when it occurred. He referred them to hospital for examination, and obtained the child’s birth certificate to ascertain her age. He stated that the appellant was arrested by members of the public who brought him to the police station. The appellant was then rearrested by the police and charged with the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/565/eng@2026-01-28 2

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11. PW5 was John Mwangi, a clinical officer at Siakago Hospital. He testified that he examined PW1 following the incident. He observed that there was a foul smell in the genitals which were also swollen, the vagina was freshly torn, vaginal walls were red and bleeding and the clitoris was swollen signaling injury. He concluded that the injuries were consistent with defilement. He produced the P3 form as evidence. 12. The defence evidence was availed by three witnesses. 13. DW1 was the appellant who stated that he was away at work on the day of the incident. When he returned home, PW3 went to his home claiming that he had defiled PW1. He stated that PW1 was with his uncle but seemingly, she did not tell him that she had been defiled, thus it was not true that she was defiled. He claimed that he was framed because PW3 and his family do not like him and they had always wanted him to leave home and move to a rental house. In cross-examination, he stated that there had been persistent differences between him and PW3 who is his brother-in-law. Further, he denied all wrongdoing and stated that on the day of the incident, he did not go to church but left home with his daughter at 10am. That it is possible that the doctor was bribed to testify and implicate him. 14. DW2 was JK, the appellant’s wife who stated that on the day of the incident, she went to church and at around 2pm, she requested the appellant to escort her somewhere and he did. They returned home at 8pm and then she went to her mother’s house. That while she was away at her mother’s house, she was called and informed that the appellant had been arrested and accused of defiling PW1. In crossexamination, she stated that she left home at about 11:30am went to church, leaving her daughter with the appellant. She could not account for the appellant’s whereabouts while she was away from home. 15. DW3 was JM, the appellant’s daughter who stated that PW1 went to her home to visit her sister. She asked her to tell her sister to visit her at her (PW1’s) home. She stated that later, she left home in the company of the appellant. They left PW1 at the river where she was washing her clothes and they walked on to Kathanje. In cross-examination, she stated that she did not leave PW1 at her home; that they left together. That PW1 passed by her home to pick clothes for washing at the river and they walked to the river together. The appellant followed them towards the same direction, and they proceeded with their journey beyond the river where PW1 was washing clothes. That she parted ways with the appellant in town and she went to church. Parties’ Submissions on the appeal 16. In his submissions, the appellant stated that the time was short between the alleged incident and the time he was charged. Thus, the matter was not properly investigated. He stated that the victim was coached to testify against him and that there is long-standing animosity between him and the victim’s family. He denied being at home on the day of the alleged incident hence he could not have committed the offence. 17. The respondent submitted that the offence had been proved beyond reasonable doubt. It relied on section 8(1) and (2) of the Sexual Offences Act and the cases of Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR), Aloyo Ewoi v. Republic (2017) eKLR and Republic v Manyeso [2025] KESC 16 (KLR). It argued that the appellant was identified by the victim as her assailant and this identification is sufficient because she knows him as his uncle. It urged the court not to overturn the finding of the trial court since the evidentiary threshold was met. Issues for Determination 18. The issues for determination are as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/565/eng@2026-01-28 3

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1. Whether or not the offence was proved beyond reasonable doubt; and 2. Whether or not the sentence should be set aside. Analysis and Determination 19. In the case of Okeno v Republic [1972] EA 32 the court held thus regarding the role of an appellate court: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 20. 21. 22. As to whether the offence was proved beyond reasonable doubt, section 8(1) and (2) of the Sexual Offences Act provide: “ (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” Therefore, the elements of the offence may state as follows: 1. That the age of the complainant is proved and that the complainant was a child; 2. That penetration as defined under section 2(1) of the Sexual Offences Act occurred to the child; 3. The perpetrator was positively identified. PW1, the victim, testified that she was 9 years old at the time of the incident. Her mother, PW2, produced a birth certificate corroborating this evidence and confirming that the victim was 9 years old at the time. In cases of defilement, the age of the victim may be proved through various means as held in the case of Alex v Republic [2023] KEHC 19483 (KLR) where the court relied on the sentiments of the Court of Appeal in the case of Mwalango Chichoro Mwanjembe v Republic (2016) eKLR as follows;“ The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent, or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” Therefore, the age of the victim was satisfactorily proved and is not disputed. 23. The victim testified that the appellant took her to his room, inserted his fingers into her vagina and later on inserted his penis into her vagina as well. Her evidence of penetration was corroborated by the testimony of PW4 who examined her following the incident. He noted that the victim’s genitals had several injuries including bruised/swollen clitoris and labia majora and freshly broken hymen. These https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/565/eng@2026-01-28 4

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were consistent with defilement. According to section 2 of the Sexual Offences Act, penetration means partial or complete insertion of the genital organs of a person into the genital organs of another person. From the evidence adduced, there is no doubt that penetration of the victim’s genitals occurred. 24. Finally, the last element for proof of defilement is identification of the assailant. PW1 identified the appellant as her assailant. She knows him as an uncle, a fact that was also established by the appellant in his defense when he stated that he is married to the victim’s father’s sister. When it comes to identification of an assailant in sexual offences, section 124 of the Evidence Act provides that the testimony of the victim is sufficient and it does not need to be corroborated. It states: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 25. In his defense, the appellant denied committing the offence and even stated that he was not at home at the time of the incident. DW2 and DW3, the appellant’s wife and daughter both testified that he left home and did not return until late. However, there were periods during the day when both DW2 and DW3 could not account for his whereabouts. DW2 and she left the appellant at home with DW3 as she went to church at around 11:30am. 26. DW1, the appellant admitted that he was at home on the material day and that he went to work, despite the fact that the day was a Sunday. In cross examination, he admitted that he did not go to church but left with Muthoni (DW3) at 10.00 a.m. On her part, DW3 testified that her mother (DW2) left for church at about 11.30 a.m, that the complainant thereafter came to their house, and that she left home with the appellant. This means she was at home at 11.30 a.m contrary to the appellant’s assertion that he left with her at 10.00 a.m. Further DW2 said that then she departed at 11.30 a.m for church. She left her husband – the appellant at home with the complainant. 27. DW2 was not with him between morning and 2pm when she said she called the appellant to take her somewhere and they returned home at 8pm. DW3 was at home with the appellant but she said that they left together with the appellant and the victim who was going to wash clothes at the river. That they both left the victim washing clothes as they proceeded to the town. DW3 stated that she parted ways with the appellant and she went to church leaving him in town. 28. The evidence adduced by the prosecution against the evidence adduced by the defense demonstrates that the appellant had opportunity to be with the complainant. Further, there are contradictions, noted even by the trial Court, between the evidence of DW2, DW3 and DW1 as to whether he was left alone with the complainant. These remain facts that discredit the defence evidence. There is therefore proof beyond reasonable doubt that the appellant had opportunity to commit the offence as alleged by the complainant. 29. Upon conviction, the appellant was sentenced to life imprisonment. This is the statutory prescribed sentence according to section 8(2) of the Sexual Offences Act. The trial Magistrate did not err in imposing that sentence as he was guided by the law in imposing the sentence as a mandatory one. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/565/eng@2026-01-28 5

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30. Moreover, the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) rendered itself on the sentences prescribed under the Sexual Offences Act. It was held thus: “ We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious.” 31. The Supreme Court reiterated its findings in that case through its recent decisions in the cases of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) and Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR). It held that until Parliament reviews the sentences imposed in statute, the court has no mandate to review them. Conclusion and Disposition 32. In light of the foregoing, there is nothing in the appeal that persuades me to interfere with the determination on conviction and sentence of the trial court. Accordingly, the appeal fails in its entirety and the conviction and sentence are hereby upheld. 33. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 28TH DAY OF JANUARY, 2026. ___________________ R. MWONGO JUDGE Delivered in the presence of: 1. Appellant present in Court 2. Ms. Mwaniki for the Respondent 3. Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/565/eng@2026-01-28 6

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