David Shitiavai v Republic

he was alone when the Appellant took him to a residence, removed his clothes, and performed "Tabia Mbaya". Specifically, he stated that the Appellant inserted his penis into the complainant’s anus. 5. Following the incident, he reported the matter to his guardian, Lilian, who escorted him to Nairobi Women’s Hospital. He identified the GVRC form, the PRC form, and the P3 form as the documents issued during his medical examination. 6. PW3, GM, testified that she resided with MA and the complainant. She gave evidence that on 17th July 2023, the complainant went to the washroom and reported experiencing acute pain while passing stool. Although he was initially hesitant to disclose the cause of the pain, he eventually informed his guardian that he was being defiled anally by the Appellant. Consequently, the family sought medical intervention at Nairobi Women’s Hospital. 7. PW4, MA, was that she was at home on 17th July 2023 with the complainant and PW3. She testified that PW3 alerted her to the fact that the complainant’s rectum appeared to be protruding and that he was unable to sit down. Upon questioning the child, he disclosed to her that the Appellant, whom he identified as David, had defiled him through the anus. She thereafter facilitated the complainant's visit to the hospital for examination and treatment. 8. PW2, David Amaya Onane, testified that on 2nd August 2023, while at Mbagathi Hospital, he encountered a lady named Mary who was complaining that a child had been defiled by an individual named David. Acting on this report, he and a colleague, Laban Mwaura, tracked the Appellant to his residence at [Particulars Withheld]. They apprehended the Appellant, placed him on a motorcycle, and escorted him to Kangemi Police Station. He was subsequently instructed by the police to ensure the child was also brought to the station to record a statement. 9. PW6, John Njuguna, a clinician at Nairobi Women’s Hospital, was that he treated the complainant on 29th July 2023. The patient reported being penetrated anally by a man on 17th July 2023 and complained of pain during bowel movements. Clinical examination revealed a painful, mild swelling of the anus. PW6 prescribed stool softeners, advised a surgical review, and produced the PRC, GVRC, and P3 forms as exhibits. 10. PW5, P.C. Hellen Muroka, testified that on 29th July 2023, a lady and the sixteen-year-old complainant reported the matter at Kangemi Police Station. The complainant stated that on 17th July 2023, the Appellant took him to a house at [Particulars Withheld] which contained no beddings but was filled with carton boxes. He alleged that the Appellant forced him to lie on the floor and defiled him. The child further described a separate incident in a forest near Portal Academy. PW5 later facilitated a courtordered age assessment, which estimated the complainant's age to be between 14 and 16 years. 11. In his defence, the appellant gave sworn evidence. He stated that on 17th March 2023, he was arrested while carrying water and claimed he did not know the reason for his arrest. He denied knowing the minor complainant. However, during cross-examination, he admitted that he resided at [Particulars Withheld] and confirmed that there were indeed carton boxes kept inside his house. 12. After a full trial, he was convicted and sentenced accordingly. 13. Further, section 8(1) and (3) of the Sexual Offences Act, No. 3 of 2006 provides thus: Defflement (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1307/eng@2026-02-12 2

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(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. 14. The elements of the offence of Defilement contrary to Section 8(1) of the Sexual Offences Act, No. 3 of 2006, are the age of the complainant, the occurrence of penetration of the complainant's body by the perpetrator’s genital organ, and the positive identification of the perpetrator. It is a matter of law that any person who commits an act of penetration with a child is guilty of the offence of defilement regardless of the nature of the orifice penetrated. 15. As to age, the complainant (PW1) was established to be a child under the age of eighteen years. This was corroborated by the testimony of PW5 (P.C. Hellen Muroka), who produced a court-ordered age assessment report placing the complainant’s age between 14 and 16 years. There is, therefore, no doubt that the complainant was a child at the time of the offence, satisfying the first limb of the charge. 16. On the element of penetration, PW1 provided direct and unequivocal evidence that on 17th July 2023, the appellant lured him with a "big G," took him to a house, removed his clothes, and inserted his penis into the complainant's anus. This testimony was corroborated by the medical evidence of PW6 (John Njuguna), whose examination revealed painful, mild swelling of the anus consistent with penile-anal penetration. Further corroboration is found in the "prompt outcry" evidence of PW3 (GM) and PW4 (MA), who observed the complainant’s physical distress and rectal protrusion immediately following the incident. 17. The description of the house at [Particulars Withheld] furnished with carton boxes rather than a bed where the incident took place, lends significant weight to the occurrence of the act. This detail was inadvertently confirmed by the appellant during cross-examination, where he conceded to living at that specific location and keeping carton boxes in his room. The element of penetration, as defined under the Sexual Offences Act, was therefore established beyond reasonable doubt. 18. On identification, PW1 testified that he knew the appellant and identified him as the person who lured him. This was not a case of mistaken identity; the appellant was apprehended at his known residence at [Particulars Withheld] by PW2 (David Amaya Onane) shortly after the report was made. The appellant’s own admissions regarding the unique interior features of his residence firmly place the complainant at the scene of the crime and link the appellant to the offence. 19. The appellant’s defence was a bare denial. He claimed he was arrested while carrying water and denied knowing the minor. However, his testimony was inconsistent and failed to challenge the cogent evidence placed before the court. His version of events is wholly implausible when weighed against the consistent and mutually corroborative prosecution case. The defence raised no reasonable doubt. 20. The prosecution therefore proved each element of the offence of defilement beyond a reasonable doubt. The evidence of the minor, the medical findings of anal trauma, and the appellant’s own concessions regarding the description of the scene render the conviction safe. 21. The appellant was sentenced to serve twenty years imprisonment. It is imperative to consider the statutory distinction provided under the Sexual Offences Act regarding the age of the complainant. While the Appellant was sentenced under Section 8(3), which mandates a minimum sentence of 20 years for the defilement of a child aged between twelve and fifteen years, the medical and forensic evidence produced by PW5 and the age assessment report established the complainant's age as being between 14 and 16 years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1307/eng@2026-02-12 3

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22. Where a medical assessment provides a range of age that straddles two different sentencing brackets, the court is duty-bound to adopt the interpretation most favourable to the accused person. If the complainant was indeed 16 years of age at the material time, the applicable provision would be Section 8(4), which stipulates a minimum sentence of 15 years for the defilement of a child aged between sixteen and eighteen years. 23. Furthermore, the principle of proportionality in sentencing and the "benefit of the doubt" regarding the child’s exact age should have guided the trial court toward the lesser statutory minimum. By failing to account for the upper limit of the age assessment (16 years), the court imposed a more severe sentence than the evidence may have strictly required. 24. In the premises the appeal on sentence is partially allowed in the following terms: i. The sentence of twenty (20) years imprisonment imposed by the trial court is hereby substituted with a sentence of fifteen (15) years imprisonment to run from 2nd August 2023, the date of his arrest pursuant to section 333(2) of the Criminal Procedure Code. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 12TH DAY OF FEBRUARY 2026 ............................... D. KAVEDZA JUDGE In the presence of: Appellant Present Mr. Mutuma for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1307/eng@2026-02-12 4

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