Rodgers Kiprotich Kemboi v Republic

1) That the Honourable Magistrate erred in both law and fact when he failed to note the contradiction in the prosecution witness’s evidence. 2) That the Honourable Magistrate erred in both law and fact by relaying on the medical report that was not conclusive. 3) That the Honourable Magistrate erred in both law and fact when she failed to note that the prosecution never proved their case to the required standard. 4) That more grounds to be adduced at the hearing of this appeal which I wish to be present. Prosecution Evidence 4. The prosecution called 5 (five) witnesses in support of the charges. 5. PW1 was the complainant. She testified that she is in Grade 6. She stated that she knows the Appellant before Court, that he is called Rodgers. She stated that on 7th March 2024 at 9:00 pm, she was sleeping in their kitchen with V and I in one bed when Rodgers came and he undressed her, he removed her pant, he removed his penis and put into her vagina and that he did it from 9:00pm to 4:00 am and that she was crying. She testified that he had done the act numerous times and she always informed her mother. 6. She stated she was taken to Iten Hospital for treatment and they reported the matter and that she was issued with a P3 Form, lab request, PRC Form which she produced as exhibits. She testified that she was born on 3/07/2010 and then produced her child health card as an exhibit. Upon being crossexamined, PW1 stated that she told her parents in the morning and that she has always informed her mother of the incident. 7. PW2 was IKK. He testified that he is in Grade 6 and that he is 13 years old. He stated that on 25th March 2024, he was at home with V and D and that they were sleeping. He testified that D was sleeping and he had gone to watch Becky series at a neighbour known as mama Noel’s home and that he came back with V and they slept in the kitchen. He stated that he removed the D-light and saw Rodger sleeping with D on the other bed, that D was sleeping with a small child on the bed and that Rodgers told them to sleep and they slept. 8. He testified that Rodgers always came at night to sleep with D. He stated that it was the second time, he saw him and that he always leaves at 4:00am. He stated that Rodgers is his brother and that he told D’s mother. He stated that he is D’s neighbour and that they always sleep in the kitchen. Upon being cross-examined PW2 stated that he saw the Appellant using a D-light. 9. PW3 was VK. He testified that he is in Grade 5 and that the complainant is his neighbour. He stated that on 7th March 2024, Rodgers, the Appellant came at midnight to their kitchen where they were sleeping and that he would leave at 4:00 am and that he used to sleep with D. He testified that he heard his voice and added that he is a son to his aunt. He stated that he has seen him several times sleeping with D. He testified that he went and informed his mother about the incident. He added that there were 2 beds and that D was sleeping on the other bed. 10. PW4 was Philemon Kitony. He testified that he is a Clinical Officer at Iten Hospital. He stated that the complainant came with a history of defilement on 16th March 2024 and that on examination labia majora and minora were intact, hymen torn and active sexually. He told the Court that his examination confirmed recent or prolonged sexual activity, consistent with defilement, that lab results urine normal, high vaginal swab showed no spermatozoa, pus cells numerous epithelia cells. He stated https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3011/eng@2026-03-05 2

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that he examined the complainant after 72 hours. He then produced the PRC Form, P3 Form and lab results as exhibits. 11. PW5 was PC Mary Goretti attached at the Iten Police Station. She testified that she is the investigating officer in the matter and that on 6th March 2024, she was at the station when the complainant came to report a case of defilement by the Appellant. She stated that the last act was sexual act was done to her on 7th March 2024 and that the Appellant had been pouncing on her and they were not in a sexual relationship. She then recorded her statement and issued her with a P3 Form. She also produced the complainant’s clinical card indicating that she born on 3rd July 2010. She then arrested the Appellant and charged him with the offence. Defence Evidence 12. At the close of the prosecution case, the learned Magistrate found the Appellant to have a case to answer. He was therefore placed on his defence He testified as (DW1) and gave unsworn evidence. He denied committing the offence and stated that he was forced to record his statement after they pulled his private parts. He told the Court that Mercy and Eusila have a grudge against him and that in December, 2023 when was circumcised he was informed that they had fought with his mother, that he rescued his mother and they threatened his mother. Submissions 13. Both parties filed their respective submissions. Both the Appellant and the Respondent filed their respective submissions on 17th September 2025. The Appellant’s Submissions 14. The Appellant’s submissions were mainly on the issue of recognition and the medical evidence that was tendered at the trial Court. 15. In regard to the issue of recognition, the Appellant argued that mistakes in recognition of close relatives and friends are sometimes made. The Appellant argued that none of the prosecution witnesses other than other PW1 saw him engaging in sexual intercourse. The Appellant maintained that PW1’s evidence was uncorroborated. 16. In regard to the medical evidence that was tendered, the Appellant also faulted PW4, the Clinical Officer for not ordering for DNA samples to determine the culprit. The Respondent’s Submissions 17. On her part, Prosecution Counsel, Ms. Racheal Mwangi begun by citing Section 8 of the Sexual Offences Act in regard to the definition of the offence of defilement and the penalty prescribed for the said offence. 18. On issue of penetration, Counsel reiterated the evidence of the complainant and submitted that her evidence was corroborated by the evidence of PW4, Dr. Philemon Kitony who examined the complainant. Counsel further submitted that when he testified on 16th March 2024, he stated that when he examined the complaint he noted that her libia minora and majora were intact but the hymen was torn and he opined that the complainant was sexually active and that his further examination confirmed recent or prolonged sexual activity. He produced the PRC Form, P3 Form and the lab results in support of the case. Counsel thus urged that the prosecution proved beyond any reasonable doubt that there was penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3011/eng@2026-03-05 3

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19. On the issue of age, Counsel cited Section 2 of the Children Act, 2022 definition of the term “chid”. Counsel submitted that a person under the age of 18 years cannot legally consent to sexual activity. Counsel submitted that the complainant testified that she born on 3rd July 2010 and that the offence was committed on 7th March 2024 placing the complainant at 14 years as the at time of the commission of the offence. Counsel added that her evidence was supported by the evidence of PW5, the investigating officer who produced the child’s Health Card. Counsel thus urged that prosecution proved beyond any reasonable doubt that the complainant was 14 years old at the time when the offence was committed. 20. On the issue of identification, Counsel submitted that the complainant herein positively identified the Appellant as the person who defiled her. Counsel urged that the Appellant was not a stranger to the complainant. Counsel observed that from the evidence on record, the complaint testified that the Appellant had defiled her numerous times before and that she always informed her mother. Counsel further submitted that the Appellant was therefore well known to PW1 and that her evidence was corroborated by the evidence of PW2 and PW3 who saw the Appellant in the complainant’s bed. 21. Counsel added that the witnesses all testified that the Appellant always left at 4:00 am. Counsel urged that identification was therefore proved beyond any reasonable doubt. Counsel relied on the holding in the case of Wanjohi and another vs. Republic (1989) KLR 436 and the case of Anjanoni and others vs. Republic (1989) KLR in regard to the issue of recognition. 22. Regarding, contradictions Counsel maintained that there were no material contradictions in the prosecution’s case that would create doubt as to whether the Appellant herein committed the offence. She relied on the case of Francis Mugo vs. Republic and that the case of Richard Munene vs. Republic [2018] eKLR. 23. Counsel further submitted that from the evidence, all the ingredients of the offence were proved beyond reasonable doubt by all the prosecution witnesses who gave a detailed account of the events leading to the defilement of the complainant. Counsel thus urged that there were no contradictions or discrepancies in the prosecution case’s that would create a doubt as to the guilt of the Appellant. Counsel reiterated that the prosecution did discharge the burden of proving beyond any reasonable doubt that the Appellant committed the offence. In conclusion, Counsel submitted that the conviction and the sentence meted out by the trial Court were safe and within the legal confines of the law. Determination 24. In determining this appeal, this court being a first appellate court is alive to and takes into account the principles laid down in the case of Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that: “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the junction of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3011/eng@2026-03-05 4

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trial court has had the advantage of hearing and seeing the witnesses, see (Peters V Sunday Post 1978) E.A. 424.” 25. The offence of defilement is rooted on three main ingredients and these are the age of the victim, penetration and the proper identification of the perpetrator. These ingredients are provided for under Section 8(1) of the Sexual Offences Act No. 3 of 2006 and each must be proven in order for a conviction to issue – see -George Opondo Olunga v Republic [2016] eKLR. 26. Section 8(1) and 8(3) of the Sexual Offences Act provide as follows: “8. 27. (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 (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. In defilement cases, proof of the age of the victim is crucial because it is a determinant on what sentence will be meted in the event the accused is convicted. In Hilary Nyongesa vs Republic (2010) eKLR, the court said; “Age is such a crucial aspect in Sexual Offences that it has to be conclusively proved...... And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.” 28. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement: “... 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 documents, 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 guardI or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 29. The next element is proving of penetration. “Penetration” is a term of art and is defined under Section 2 of the Sexual Offence Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. 30. Regarding the issue of identification. In the case of Hassan Abdallah Mohammed vs Republic [2017] eKLR it was stated that: “Visual identification in criminal cases can cause miscarriage of justice and should be carefully tested. The court in Wamunga vs Republic (1989) KLR 424 at 426 had this to say: “Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3011/eng@2026-03-05 5

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satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.” 31. In Nzaro vs Republic (1991) KAR 212, the Court of Appeal held that evidence of identification by recognition at night must be absolutely watertight to justify conviction. 32. I have considered and ruminated upon the proceedings before the trial court as well as the submissions filed at great length. I have also read the impugned judgement. In addressing my mind to the same as juxtaposed against the grounds of appeal filed by the Appellant as herein reproduced, it is my very well considered opinion that the prosecution case before the trial court was by the prosecution proved to the required standard of beyond reasonable doubt on the three ingredients of age, penetration and identification by way of the evidence adduced. In this regard, I am satisfied that the finding of guilt and consequent conviction of the Appellant by the Learned Magistrate was warranted, correct and merited. In the circumstances, the conviction is upheld and the resultant appeal in accordingly dismissed. 33. On the question of Sentence, the Appellant was sentenced to serve 20 years’ imprisonment. The Appellant argued that the sentence is manifestly excessive in the circumstances of this case. An appeal against a sentence imposed by a trial Court can only be set aside, substituted or varied under the following circumstances: 34. (a) Where the trial Court misapprehended the relevant factors and principles on sentencing. (b) Where the trial Court failed to interpret the Laws on sentencing to ascertain the intention of the legislature. (c) Where in arriving at the sentence the balance of the relevant factors and the competing considerations were never dissected to arrive at a fair and proportionate sentence for the crime. This is what the Court in Bernard Kimani Gacheru v Republic [2002] eKLR emphasised that: “It is now settled Law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.” 35. The above said and without belabouring the issue, the position in law is that the sentences prescribed under the Sexual Offences Act are mandatory. The provisions of Section 8(3) of the Act under which the Appellant was sentenced by dint of the age of the complainant provides for a minimum sentence of 20 years. The learned Trial Magistrate sentenced the Appellant to the minimum aspect of that sentence and in this regard, it is my finding that the said sentence is not excessive, harsh and unjustly unfair but is legal and correct and is therefore justified. 36. The above said, the court notes from the sentence meted out that as provided under Section 333(2) of the Criminal Procedure Code, the trial court did not take into consideration the period that the Appellant spent in remand custody in the said sentence. This being a mandatory provision of the law, the court notes that the plea was taken on 25th March 2024 and the Appellant was sentenced on 24th July 2024 and he was in remand throughout the trial. This is an aggregate period of 4 months. The court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3011/eng@2026-03-05 6

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now hereby directs that this period be computed in the Appellants sentence of 20 years ‘imprisonment and it is so ordered. 37. The upshot of all my above findings then is that save for the court’s finding on the provisions of Section 333(2) of the Criminal Procedure Code, the Appellant’s appeal against conviction and sentence is devoid of merit and the same is therefore dismissed in its entirety and the trial court’s conviction and sentence are accordingly upheld. READ DATED AND SIGNED AT ITEN ON 5TH MARCH 2026 E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3011/eng@2026-03-05 7

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