Mwita v Republic (Criminal Appeal E037 of 2023) [2026] KEHC 2102 (KLR) (25 February 2026) (Judgment) Neutral citation: [2026] KEHC 2102 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MIGORI CRIMINAL APPEAL E037 OF 2023 KW KIARIE, J FEBRUARY 25, 2026 BETWEEN SIMEON NKONGAI MWITA ................................................................ APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (From the original conviction and sentence in S.O. Case NO. E046 of 2022 of the Chief Magistrate’s Court at Migori by Hon. Angela Munyuny, Resident Magistrate) JUDGMENT 1. Simeon Nkongai Mwita, the appellant herein, was convicted of the ofience of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 of 2006. 2. The particulars of the ofience are that on diverse days between the 14th and the 18th day of March 2021, at [Particulars Withheld] village, Kuria West sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of C.R.J., a child aged fourteen years. 3. The appellant was sentenced to serve twenty years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised sixteen grounds, which I have summarised as follows: a. The learned magistrate erred in fact and in law in failing to appreciate that the respondent failed to prove to the required standard that the appellant actually defiled the complainant. b. The learned magistrate failed in fact and in law to consider any of the compelling evidence adduced by the appellant at the trial court. c. The learned trial magistrate erred in law and fact by treating the defence of the appellant so superficially and altogether rejecting the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2102/eng@2026-02-25 1
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d. The learned trial magistrate erred in law by failing to appreciate that a mandatory sentence is unconstitutional and has been reviewed by the Supreme Court of Kenya. e. The learned trial magistrate erred in law in convicting the appellant and sentencing him to 20 years in prison, which was excessive in the circumstances. 4. The respondent did not submit any grounds of opposition or other submissions. 5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, having neither seen nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32. 6. Although the appellant argued that the trial court did not comply with Article 50(2)(g)(h) of the Kenyan Constitution 2010, he did not provide further explanation. Therefore, I dismiss this ground of appeal. 7. An ofience of defilement is established against an accused person when the prosecution has proved the following ingredients: a. That there was penetration of the complainant’s genitalia; b. That the accused was the perpetrator and c. The victim must be below eighteen years old. This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said: Going by this definition of defilement… the issues which the court needs to determine…first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. 8. I will determine if the prosecution proved these ingredients to the required standards. 9. The complainant’s birth certificate was submitted as an exhibit, showing her birth date as 22nd April 2006. As of 14th March 2021, she was 14 years and 11 months old. This confirms her age as required. 10. C.R.J. (PW1) testified that the appellant seduced her, and she agreed to go with him to their home. She was in the house for three days, and they had sexual intercourse. 11. After the complainant returned home, the matter was reported, and she was taken for medical examination. George Omondi Olocho (PW4), a clinical officer at Kuria West sub-county hospital, examined the complainant on 19th March 2023. He observed the following: a. Broken hymen, though not fresh; b. High vaginal swab showed the presence of pus cells and spermatozoa; 12. He therefore concluded that she had been defiled. 13. The prosecution, therefore, proved penetration to the required standards. 14. Simeon Nkongai Mwita, the appellant, contended that he did not know the complainant at all. He called Florence Wankuru (DW2) as his witness. Her evidence was that the appellant is her son. She knew the complainant who went to visit the appellant’s sisters, but at the time, the appellant was not present. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2102/eng@2026-02-25 2
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15. The complainant was familiar with the appellant. His defence was simply a denial. Although the intercourse was consensual, the complainant lacked the capacity to consent. I am convinced that the prosecution demonstrated that he intentionally defiled the minor. 16. Section 8(3) of the Sexual Offences Act provides: A person who commits an ofience 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. 17. The appropriate sentence was meted out. 18. The conclusion from the above analysis of the available evidence is that the appeal has no merit and the same is dismissed. DELIVERED AND SIGNED AT MIGORI ON THIS 25TH DAY OF FEBRUARY 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2102/eng@2026-02-25 3
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