Harrison Kailibia v Republic

7. The Appellant herein went for the victim at Kiolo, promising to take her to school. He went with her to Ngutu. He however did not take her to school. 8. The Appellant is a mason and had bought a parcel of land at Ngutu from PW-1. He had his house on the said land. He had lived there with PW-1 for about 3 years before the incident in this case. 9. When the Appellant took the victim to his house he informed PW-1 about it. He told him that he had his grandchild with him and wanted to take her to school. PW1 did not doubt him. 10. The victim alleged that between the years 2020 and 2021, when she was living with the Appellant, he started to make her his wife. He would get her into his bed while they were only the two of them. He would then remove her clothes, inclusive of her underwear. He could then remove his and using his penis touch on her vagina. 11. On 26/7/2021 at about 8.00 Pm the victim went to PW-1 while crying. She reported to him the Appellant placed her on his bed so as to sleep with him. He intended to make love to her. PW-1 reported to Muriuki Julius, the Area Chief. The Appellant was arrested and taken to Mikinduri Police Station. 12. PW-4 investigated the matter and recorded witness statements. The victim said she was 13 years old though had no birth certificate. 13. The victim was taken to Mikinduri Hospital for examination and filling of the P-3 form. PW-3 examined her on 6/8/2021 and filled her P-3 form. Tests for HIV, Syphilis and pregnancy were negative. High vaginal swab however revealed presence of epithelial cells, which is a sign of infection. Her hymen was broken and she was 13 years old. The Clinical Officer concluded that she had sex, and was therefore defiled. Her treatment notes, lab request form, PRC form and P-3 forms were produced as exhibits. 14. The Appellant in his defence stated that he had bought a plot at Ngutu where he lives. He had shifted there from Mikinduri. His wife had left him and he is the one who was taking care of his children. His neighbours at Ngutu fixed him so as to take his 0.50 points land from him. 15. The trial Court evaluated the evidence and found the Appellant guilty of the offence in the main Count. He was consequently convicted of it and sentenced to serve 20 years imprisonment. 16. Dissatisfied with the said conviction and sentence he appealed to this Court on the grounds that:1. The age of the complainant was not proved. 2. Penetration was not proved. 3. The Court failed to note that the charges were framed-up due to vendetta between the Appellant and PW-2. 4. The period spent in custody was not considered while sentencing. 5. The defence was not evaluated. 17. The Appeal was canvassed by way of written submissions and both sides filed their respective submissions. 18. As the first Appellate Court, I have re-evaluated the charges, evidence adduced in the Lower Court, Judgment entered, Sentence meted, ground of the Appeal and submissions by both sides. As was held in the case of Okeno –vs- Republic (1972) EA 32, I have to bear in mind that I did not see nor heard the witnesses testify. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3176/eng@2026-03-10 2

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19. Under Section 8(1) of the Sexual offences Act, No. 3 of 2006, a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 20. A child means a person below the age of 18 years as defined under Section 2 of the Act and the Children Act. 21. The three ingredients for the offence of defilement which the prosecution need establish beyond reasonable doubt are:1. Age of the complainant. The age is significance as it determines whether the offence is defilement and also the sentence in case of a conviction, under Section 8(2), 8(3), and 8(4) of the Act. In the case relied on by the Respondent of Edwin Nyamogo Onsongo –vs- Republic, age of a victim in a case of defilement can be proved by documents, such as Birth certificate, Baptisms Card or by oral evidence of the child or parent or guardian or medical evidence, among other credible forms of proof. In this case, PW-1 said he assessed her age to be 13 years. He did not disclose how he assessed and he is not a guardian or an expert in age assessment. However, this is not entirely useless evidence as apparent age matters, and the evidence need be assessed in line with other available evidence in that respect. In my own view, such evidence, not coming from the trial Court which is entitled to assess the apparent age and indicate reasons for it in the proceedings, coming from an ordinary person, it requires corroboration. The victim did not state her age when she gave evidence. She only stated that she was in class 4. However, the P-3 form indicates she was 13 years old. The same applies to Mikinduri Sub-County Hospital treatment card. The PRC form indicates she was born in the year 2008. The offence allegedly took place in the last year, in 2021 which by calculation places the victim at 13 years old then. There’s no other evidence adduced or availed to the contrary. The evidence when weighed together establishes beyond reasonable doubt that the victim was at the alleged time of the offence aged 13 years, and was therefore a child. 2. Proof of penetration. Section 2 of the Sexual Offences Act defines penetration as:Partial or complete insertion of the genital organs of a person into the genital organs of another. Proof can be by testimony of the Complainant, circumstantial evidence, medical evidence (P-3 form, PRC form and treatment notes) or oral evidence or testimony of a Medical Officer. In this case though the evidence of the victim is not very clear on penetration, the revealed circumstances points irresistibly to the fact that there was penetration. PW-2 stated the Appellant used to get her into his bed, remove her clothes and underwear. He could then remove his and touch her vagina with his penis. The question is whether he just touched or penetrated. The evidence of PW-3, the Clinical Officer who examined the victim makes it clear that she was penetrated. Her hymen was broken and High Vaginal Swab examination revealed presence of epithelial cells of which he concluded was evidence of penetration. Given the evidence it was safe for the trial Court to conclude that the victim was penetrated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3176/eng@2026-03-10 3

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3. I now move to the last ingredient of positive identification/recognition of the Appellant as the penetrator. The evidence of PW-1 and PW-2 shows he was the one living with the victim as a guardian. He was a neighbour to PW-1 for 3 years and PW-1 is the one who sold the plot to him to build a house. He is a relative to the victim and the two witnesses therefore knew him very well. They could not have made a mistake of him. If anything, the incident(s) happened in his house, on his bed. He’s the culprit. 22. In his defence he alleged he was fixed by neighbours who intended to take his land. He did not explain how, as the victim could not harbor such desire. 23. His defence cannot be true and was rightly dismissed by the trial Court. 24. The minimum sentence for the offence is 20 years imprisonment. There are aggravating factors as the Appellant was over 50 years and took advantage of a small girl whom he had offered to assist in schooling, only to end up defiling her, of which may have caused her severe psychological effects such as trauma, anxiety, depression, fear, shame, loss of trust, and long-term emotional distress. He deserved the sentence meted, and I find no justifiable cause for interfering with the same. 25. The bottom line is that the Appeal lacks merit and is hereby dismissed. File is closed. DATED AND DELIVERED AT MERU THIS 10TH DAY OF MARCH, 2026. S. M. GITHINJI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3176/eng@2026-03-10 4

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