PMN v Republic (Criminal Appeal E140 of 2025) [2026] KEHC 2537 (KLR) (26 February 2026) (Judgment) Neutral citation: [2026] KEHC 2537 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA CRIMINAL APPEAL E140 OF 2025 DR KAVEDZA, J FEBRUARY 26, 2026 BETWEEN PMN ........................................................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an appeal against the original conviction and sentence imposed by the trial court on 31st July 2025 at Kibera Chief Magistrate’s Court Sexual Offences Case No. E108 of 2022 Republic vs Patrick Muthonzwe Ngomoli) JUDGMENT 1. The Appellant was charged and, after full trial, convicted by the Subordinate Court of the offense of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No.3 of 2006. He was sentenced to serve twenty-five (25) years imprisonment. 2. Aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and sentence. 3. This is the first appellate court, and in Okeno v R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusion on that the evidence without overlooking the conclusions of the trial court, but bearing in mind that it never saw the witnesses testify. 4. PW1 (SAO) stated that she was born on 16th March 2007 and, in 2022, was residing with her sister and the appellant. She was a school-going minor at the material time. SAO recounted that her sister requested her to obtain a urine sample from a chemist, and she left with the appellant. Upon a positive test, her sister enquired if she was pregnant and she confirmed she was and initially stated that the appellant was responsible. Her sister subsequently expelled her from the home. The following day, she https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2537/eng@2026-02-26 1
page 1 of 3
reported to the local Chief and was taken to hospital. The complainant denied previous sexual relations with the appellant, clarifying that the pregnancy was attributable to another person, James Ndegwa. 5. PW4 John Njuguna, a clinician at Nairobi Women’s Hospital, examined the minor on 26th October 2022. He confirmed the pregnancy and produced the P3 form. He noted that the alleged offence occurred in June 2022 and that the minor bore no physical injuries. 6. PW5 Pamella Okello, a gazetted government analyst, conducted DNA analysis on buccal swabs taken from SAO, the appellant, and the child, Shyna, on 30th June 2023. Her analysis, completed on 10th July 2023, established with 99.99% certainty that SAO was the mother and PM the father. The swabs were properly stored and uncontaminated, and her report was produced. 7. PW3 PC Douglas Ombati, the arresting officer, testified that on 23rd October 2022 he collected the minor from Jogoo Police Station and availed her to Mutuini Police Station. Investigations led to the arrest of the appellant on 28th October 2022, in the presence of the complainant and another officer. 8. PW6 PC Brenda Muthui, the investigating officer, recorded statements of the complainant and other witnesses. She confirmed that the minor was chased away by her sister upon discovery of the pregnancy and that evidence indicated the appellant was the father. She produced a copy of the child’s birth certificate. PC Muthui further noted that the minor categorically stated she had not consented to sexual intercourse, and that the pregnancy confirmed defilement by the appellant. 9. PW7 Zacharie Mbeke Asigo, of MSF, presented the PRC form and GVRC form, confirming that the complainant was 24 weeks pregnant at examination on 18th October 2022, with no other injuries or sexually transmitted infections. 10. In his defence, the appellant testified that he resided at Mtego area with his family and the complainant. He claimed that on the date of the incident he was at work, and the minor allegedly persuaded him to engage in sexual intercourse, which he asserted occurred without consent from him. He requested the Court to consider his children and time spent in custody, noting that SAO was 15 years old at the time and that the child was born from the sexual encounter. 11. After a full trial, he was convicted and sentenced accordingly. 12. 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. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 13. 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. 14. On the element of age, PW1 testified to her date of birth as 16th March 2007, a fact corroborated by the investigating officer, PW6, and the production of a birth certificate. At the time of the offence in June 2022, the complainant was fifteen years of age. The Appellant, in his own defence, admitted the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2537/eng@2026-02-26 2
page 2 of 3
complainant was fifteen years old, thereby satisfying the age requirement under Section 8(3) of the Sexual Offences Act. 15. On penetration, PW4, a clinician, and PW7, a medical officer from MSF, confirmed through clinical examination and the production of PRC and P3 forms that the minor was 24 weeks pregnant in October 2022. Pursuant to Section 2 of the Sexual Offences Act, the resulting conception serves as conclusive evidence of prior penile-vaginal penetration, notwithstanding the absence of acute physical injuries at the time of the late-stage examination. 16. Identification in this matter transitions from recognition to forensic certainty. While the complainant initially offered a contradictory account naming a third party, the biological reality was determined by PW5, a Government Analyst. The DNA analysis of buccal swabs established with 99.99% certainty that the Appellant is the biological father of the complainant's child. This scientific nexus, coupled with the fact that the parties cohabited in the same residence, eliminates any possibility of mistaken identity and confirms the Appellant as the perpetrator. 17. The appellant’s defence was internally inconsistent, at once claiming an alibi of being at work, while simultaneously asserting that the minor "persuaded" him into sexual intercourse. This court holds that under the Sexual Offences Act, a minor cannot legally consent to sexual acts; therefore, any claim of "persuasion" is a legal nullity. His admission of a sexual encounter, corroborated by the DNA results, renders his denial implausible. 18. The court finds that the prosecution has successfully woven a coherent chain of evidence. The minor’s protected status, the clinical proof of pregnancy, and the irrefutable DNA profile together establish the Appellant's guilt to the exclusion of any other reasonable hypothesis. The Appellant exploited a position of domestic proximity to commit the offence. Consequently, the essential elements of defilement have been proved beyond reasonable doubt, and the conviction is affirmed. 19. The appellant was sentenced to 25 years imprisonment. During sentencing, the court considered the pre-sentence report, the appellant's mitigation, and that he was a first offender and sentenced the appellant accordingly. In the premises, I see no reason to interfere. 20. 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 26TH DAY OF FEBRUARY 2026 ............................... D. KAVEDZA JUDGE In the presence of: Appellant Absent Mr. Kamau for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2537/eng@2026-02-26 3
page 3 of 3