Paul Masichi Likhodio v Republic

his penis and inserted it into her anus. When he noticed Mike approaching, the Appellant promptly dressed her and directed her outside to cut tomatoes. He then took her younger sister, M.W, indoors, inserted his penis into her vagina. The Appellant then instructed Mike to escort PW1 to their mother as she was crying. Mike returned to the Appellant’s house, where the Appellant provided food to both children. He further directed Mike to wash the utensils. 5. PW1 further stated that, while cutting tomatoes outside, she could see into the house through the open door. She told the court that she experienced mild pain during the anal penetration. The Appellant served them ugali and vegetables. PW1 later narrated the incident to Mike, who informed their mother. The parents thereafter took the children to hospital. She identified the appellant as the perpetrator of the offence. 6. PW2, GW, mother of PW1 and M.W, testified that PW1 was six years old while M.W was 2 years old. She produced their birth notifications. She told the court that on 8th April 2024, at approximately 12:30 p.m., while she was working and the children played outside, the Appellant offered to feed them. Subsequently, M.W returned crying and later slept. When she woke up M.W complained of inability to urinate. When placed on the toilet seat, she resisted opening her legs. 7. PW1 then disclosed that the Appellant had removed her clothes and parted her legs. PW2 contacted the father, who advised her to take them to hospital. Later PW1 further informed PW2 that the Appellant had undressed her and applied oil to her buttocks. On cross-examination, PW2 denied knowledge of any debt owed by her husband to the Appellant. 8. PW3, John Njuguna, a clinician at Nairobi Women’s Hospital, produced the medical records. He confirmed that M.W (aged two years) was presented on 8th April 2024 at 19:48 hours. Examination revealed a vaginal laceration at the 5 o’clock position. The hymen remained intact, but injuries to the outer vaginal area were consistent with vaginal penetration. He produced and identified the P3 Form, the GBVRC Form, and the PRC Form. 9. PW5, Nancy Ndiritu, the investigating officer attached to Waithaka Police Station, testified that upon receipt of the complaint, she contacted PW2, who reported that her daughters had been defiled by their neighbour, the Appellant. PW2’s five-year-old child was also implicated in the complaint. PW5 issued a P3 Form, which was duly returned completed. She effected the Appellant’s arrest and arraigned him before court. On cross-examination, PW5 confirmed she had no knowledge of any alleged debt between the Appellant and the complainants’ mother. 10. In his unsworn defence, the appellant stated that on 12th April 2024 he received a telephone call from a woman identifying herself as Nancy of Waithaka Police Station, summoning him to the station. Upon arrival, three persons alighted from a Probox vehicle, identified him as “ndiyo huyu”, whereupon he was handcuffed and transported to Riruta Police Station. The said Nancy informed him that the children’s parents demanded Kshs. 30,000. He asserted that he was not apprised of any formal charges. 11. After a full trial, the appellant was convicted accordingly. The appeal was canvassed by way of written submissions which have been duly considered which have been duly considered and there is no need to rehash them. 12. Section 2 of the Sexual Offences Act, No. 3 of 2006, defines an “indecent act” as any unlawful intentional act which causes (a) contact between any part of the body of one person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration; or (b) exposure or display of any pornographic material to any person against his or her will. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3109/eng@2026-03-05 2

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13. The prosecution was required to prove, beyond reasonable doubt, the essential ingredients of the offence of committing an indecent act with a child contrary to section 11 of the Sexual Offences Act, namely the age of the complainant and the commission of the unlawful act. 14. On age, PW2, Gladys Wambui, produced birth notifications establishing that the minor was born on 30th November 2021. As at 8th April 2024, the material date, the complainant was a child within the meaning of the Act. This element was conclusively proved and was not rebutted. 15. On the second element, PW1 testified that the Appellant directed her to lie on a mattress in his house, exposed his genitalia and inserted his penis into her anus, causing pain. She further stated that he took M.W and inserted his penis into her vagina. PW1 observed portions of these events through an open door while outside cutting tomatoes. Her testimony was direct, detailed and internally consistent. 16. PW2 corroborated the immediate aftermath. She stated that M.W returned crying, subsequently complained of inability to urinate, and resisted opening her legs. It was further reported that the Appellant had undressed the child, parted her legs and applied oil to her buttocks. Medical evidence adduced by PW3, John Njuguna, revealed a vaginal laceration at the 5 o’clock position; the hymen was intact, but there were outer vaginal injuries consistent with penetration. The medical findings materially supported the prosecution narrative. 17. It is not in dispute that M.W, the complainant, was not called as a prosecution witness. Notwithstanding that omission, the trial court founded the conviction on the totality of the evidence on record. It relied principally on the testimony of PW1, who witnessed the ordeal, and the medical findings. The court expressly found PW1’s evidence to be clear, consistent, detailed and credible. That account was materially corroborated by PW2’s testimony as to the events immediately following the incident and the distressed condition of M.W. Further corroboration was derived from the independent medical evidence of PW3, which confirmed penetration injuries consistent with the complaint, as well as the testimony of PW5 on the course of investigations and the absence of any discernible motive to fabricate. 18. Pursuant to the proviso to section 124 of the Evidence Act, a conviction in sexual offences may properly be founded on the uncorroborated evidence of the victim where the court is satisfied of her truthfulness and records the reasons for such belief. In the present case, although corroboration was not a legal prerequisite, the evidence of PW1 was in any event substantially supported by independent and circumstantial evidence. The trial court was therefore entitled, both in law and on the facts, to find that the prosecution had proved its case beyond reasonable doubt and to sustain the conviction. 19. The Appellant’s defence amounted to a bare denial. He asserted that the complainant’s father was indebted to him and that the charges were therefore fabricated. That allegation was neither substantiated nor supported by any credible evidence. No particulars of the alleged debt were tendered, nor was any material placed before the court to demonstrate the existence of a grudge capable of motivating a false accusation. 20. The defence was speculative and did not dislodge the prosecution case, which was cogent, consistent and mutually corroborative. It failed to raise any reasonable doubt as to the veracity of the prosecution evidence. In the premises, the trial court was entitled to reject the defence and to find that the charge had been proved beyond reasonable doubt. The conviction is affirmed. 21. The appellant was sentenced to ten (10) years imprisonment. During sentencing, the court considered his mitigation, and that he was a first offender. The Act provides for a minimum sentence of ten (10) years. In my mind, I have no doubt that the sentence imposed was legal and not harsh or manifestly excessive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3109/eng@2026-03-05 3

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22. The upshot of the above analysis is that the appeal is found to be lacking in merit and is dismissed. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF MARCH 2026 D. KAVEDZA JUDGE In the presence of: Appellant Present Mutuma for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3109/eng@2026-03-05 4

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