JCM v Republic (Criminal Appeal E059 of 2022) [2026] KEHC 999 (KLR) (28 January 2026) (Judgment) Neutral citation: [2026] KEHC 999 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIAMBU CRIMINAL APPEAL E059 OF 2022 DO CHEPKWONY, J JANUARY 28, 2026 BETWEEN JCM ............................................................................................................ APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Appeal against CONVICTION ONLY, for the offence of Defilement contrary to Section 8(1)(2) of the Sexual Offences Act No.3 of the Laws of Kenya, Judgment delivered on 17th August, 2021 at SPM’s Court in Githunguri) JUDGMENT 1. The matter is for mention for the Appellant to confirm filing and service of written submission. 2. However, the Appellant is not in attendance but a perusal of the court record reveals a Letter dated 4th December, 2025 from Evans Ndungu (S.P) of Kiambu Prison addressed to the Deputy Registrar, wherein he has forwarded an undated Letter addressed to the Registrar by JCM, the Appellant herein, wherein he has expressed his resolve to have this appeal withdrawn on the grounds that he has considered the jurisprudential imperatives of finality of litigation, conservation of judicial resources, absence of substantial appellate substratum, personal reconciliation with the trial court’s verdict, avoidance of dilatory proceedings, respect of the findings of the subordinate court and the overarching interest of justice. 3. It will be noted that the Appellant herein was arrested and charged with the ofience of Defilement contrary to Section 8(1)(2) of the Sexual Offences Act No.3 of the Laws of Kenya, in Count 1. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/999/eng@2026-01-28 1
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The facts of the ofience were that:“ On 18th day of September, 2020 at around 1800 hours in Githunguri Sub-county within Kiambu County, the Appellant intentionally and unlawfully caused his genital organs namely, penis to penetrate into the vagina of AWN, a girl child aged 10 years”. 4. The Appellant was also charged with an alternative charge of Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act and a second Count of Deliberate Transmission of HIV contrary to Section 26(1)(b) of the Sexual Offences Act, No.3 of 2006. The particulars of the said (2) Counts were that:“ On 18th September, 2020, at around 1800 hours in Githunguri Sub-county within Kiambu County while having actual knowledge that he was infected with HIV, the Appellant intentionally and wilfully inserted his penis in the vagina of AWN which he knew to likely lead to AWN being infected with HIV.” 5. The Appellant pleaded “Not Guilty” to the said ofiences and he was tried from 28th October, 2020 until 17th July, 2021 when the Appellant was placed on his defence and he opted to remain silent. The trial Court then proceeded to deliver a Judgment on 17th August, 2021 wherein the Appellant was found guilty of the ofience of Defilement. The Appellant was acquitted under Section 215 of Criminal Procedure Code for the ofience of Deliberate Transmission of HIV contrary to Section 26(1)(b) of the Sexual Offences Act on the ground of insufficient evidence. 6. Dissatisfied with the said conviction and sentence the appellant filed the present appeal vide a Memorandum of Appeal dated 16th September, 2022, citing six (6) Grounds of Appeal. 7. It is worth noting that both Records of Appeal and Original Proceedings were availed in court and on 21st November, 2024, the appeal was admitted for hearing and directions on its disposal issued. On 3rd December, 2025 both sides confirmed having filed and served their respective submissions. 8. However, counsel for the Respondent went on to orally submit that the Appellant had been charged under Section 8 of the Sexual Offences Act which provides for a mandatory life sentence but he had been sentenced to serve a fifteen (15) years sentence which is an illegal sentence. He then urged that the sentence meted against the Appellant be enhanced and invited the Appellant to respond to the said issue. In response, the Appellant has filed a Notice of Withdrawal of this Appeal. 9. In determining the merits of the Notice of Withdrawal, I have taken into consideration the reasons advanced by the Applicant as being the grounds upon which his request for the appeal to be withdrawn. 10. This Court finds the reasons justified and tangible. In conclusion, pursuant t the undated Notice of Withdrawal application filed in this Court on 19th December, 2025, this Appeal be and is hereby marked as withdrawn. 11. Consequently, this Appeal be and is hereby marked as withdrawn with no orders as to costs. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 28TH DAY OF JANUARY , 2026. D. O. CHEPKWONY https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/999/eng@2026-01-28 2
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JUDGE In the presence of:Appellant in person – Absent M/S Murrui counsel for the Respondent Court Assistant – Martin/Sakina https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/999/eng@2026-01-28 3
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