Daniel Nyongesa Andera v Republic

Sunday service and remained for a crusade. She stated that after the crusade ended, the appellant, Pastor Dan, asked her to assist in carrying approximately five chairs to his home in [Particulars withheld] area. They arrived at his residence around 8.30 p.m. The appellant brought food, which they ate. When she expressed a wish to return home, he informed her that it was late and the gate was closed. 5. The complainant gave evidence that she proceeded to the bedroom to sleep. The appellant initiated sexual intercourse without prior discussion. She was wearing a red dress, sweater, and white panties. He lifted her dress, removed her panties, partially removed his boxer, exposed his penis, and inserted it into her vagina. She felt something come out of his penis into her vagina, experienced pain, but did not voice it. He then withdrew, instructed her to sleep, and she remained at his home overnight. She stated this was the second occasion of sexual intercourse with the appellant; the first had occurred previously at his home. She further stated that their relationship began in October 2023, initiated by the appellant, who requested that she become his wife. 6. At approximately 6.00 a.m. on 6th November 2023, her father (PW3, CO) and grandfather knocked at the door. The appellant opened it. They located the complainant inside, took her and the appellant to Muthangari Police Station where the matter was reported. Thereafter, she was taken to Nairobi Women’s Hospital for examination and treatment. She was issued a Gender-Based Violence Recovery Centre (GVRC) form dated 6th November 2023, a Post-Rape Care (PRC) form dated 6th November 2023 and a P3 form. 7. Medical examination revealed a healed hymenal tear at the 6 o’clock position, consistent with prior penetrative trauma which was produced by PW2, Dr. John Njuguna, on behalf of clinician Mutheu Kaloo. She later learned she was pregnant for a few weeks. 8. PW3, her father, confirmed her date of birth as 4th October 2010, and that she had attended the church where the appellant served as assistant pastor, and that she failed to return home on 5th November 2023. Her sister directed them to the appellant’s home the following morning, where they found her. 9. PW4, PC Ruth Nanjala of Muthangari Police Station, recorded the defilement complaint on 6th November 2023 from PW3. The complainant narrated events consistent with her testimony. The officer issued the P3 form, recorded statements, visited the scene, and confirmed the complainant’s age via birth certificate. 10. In his defence, the appellant (DW1) denied the allegations. He testified that his father visited on 3th November 2023 and departed on 4th November 2023. On 5th November 2023, he attended church and crusade with his wife, Lucy Regina Wesonga, returning home with her around 7.30 p.m. His wife complained of a headache; he prepared food, and they slept. The next morning, while fetching breakfast, he saw the complainant on the balcony. She claimed to be visiting his wife. He directed her home, then met her father outside, who requested assistance at the police station. He was taken there by motorbike and denied any sexual contact, asserting the complainant was merely outside his home. 11. DW2 (Justus Nyongesa, the appellant’s father), DW3 (Lucy Regina Wesonga, the appellant’s wife), DW4 (Charles Kaka, senior pastor), and DW5 (Eunice Achieng, neighbour) gave evidence supporting the defence version, including the wife’s presence at home, the complainant arriving later claimed to have been chased away by her father, and her sleeping separately before the father’s arrival. 12. After a full trial, the appellant is accordingly found guilty as charged. 13. The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3397/eng@2026-03-11 2

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14. To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 15. Further, section 8(1) and (3) of the Sexual Offences Act, No. 3 of 2006 provides thus: 8. Defilement (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. 16. On the element of age, the complainant, PW1, testified on oath that she was born on 4th October 2010, as confirmed by her birth certificate which was produced in evidence. At the time of the alleged incident on 5th November 2023, she was 13 years old. The prosecution therefore established beyond reasonable doubt that the complainant was a child under the age of eighteen years, as required by section 8(1) of the Sexual Offences Act. 17. On the element of penetration, PW1 gave clear, direct and cogent evidence in her sworn testimony. She stated that after assisting the appellant to carry chairs to his home in Kawangware, Soko Mjinga area, around 8.30 p.m., he initiated sexual intercourse without any prior discussion. She described how the appellant lifted her red dress, removed her white panties, partially removed his boxer shorts, exposed his penis and inserted it into her vagina. She felt something come out of his penis into her vagina and experienced pain. This direct oral evidence of penetration was materially corroborated by the medical examination conducted at Nairobi Women’s Hospital on 6th November 2023. PW2, Dr. John Njuguna, produced the GVRC report, PRC form and P3 form, which recorded a healed hymenal tear at the 6 o’clock position, consistent with prior penetrative trauma. No alternative explanation for the injury was advanced or supported by the evidence. The complainant also told the court that this was the second sexual encounter with the appellant. The trial court was satisfied that penetration was proved beyond reasonable doubt. 18. On the identity of the perpetrator, PW1 was firm, consistent and unshaken in her identification of the appellant as the person who defiled her. She knew him well as Pastor Dan from Favour Christian Church in Kawangware, where he served as an assistant pastor and where she participated in the praise and worship team and Sunday school. She pointed him out in court as the appellant. She gave a detailed account of the events leading to and including the act of defilement, which occurred at his home after they had carried chairs there together following the crusade. There was no suggestion of mistaken identity, and her evidence on identification withstood thorough cross-examination. The appellant was positively identified by the complainant as the perpetrator. 19. The appellant, in his defence, gave sworn evidence denying any sexual contact with the complainant. He asserted that on 5 November 2023 he attended church and the crusade with his wife, Lucy Regina Wesonga, returned home with her around 7.30 p.m., prepared food due to her headache, and they slept together. He claimed that the complainant appeared at his home the following morning claiming to visit his wife, and that her father then took him to the police station. He was supported by his wife (DW3), his father (DW2), a neighbour (DW5) and the senior pastor (DW4), who gave evidence suggesting the complainant had slept separately at their home after arriving late and that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3397/eng@2026-03-11 3

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appellant’s wife was present throughout. The trial magistrate, however, found the appellant’s bare denial implausible when weighed against the prosecution’s evidence. 20. Upon careful consideration of the whole evidence, the trial magistrate found PW1’s testimony to be credible, detailed, coherent and consistent throughout. It was not shaken on cross-examination. Pursuant to section 124 of the Evidence Act (Cap. 80), which permits conviction in a sexual offence case on the uncorroborated evidence of the victim alone where the court is satisfied that she is telling the truth (and records reasons for that belief), the magistrate expressly believed PW1 and relied on her evidence. The magistrate rejected the defence case as failing to raise any reasonable doubt. All elements of the offence of defilement contrary to section 8(1) of the Sexual Offences Act were proved beyond reasonable doubt, and the conviction was proper and is affirmed. 21. On sentence, the appellant was sentenced to serve (20) years’ imprisonment. The record shows that the trial court considered the pre-sentence report, the appellant’s mitigation and the fact that he was a first offender before arriving at that sentence. The sentence imposed was legal and I see no reason to interfere. 22. In the premises, the application is found to be lacking in merit and is dismissed in its entirety. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 11TH DAY OF MARCH 2026 _______________ D. KAVEDZA JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3397/eng@2026-03-11 4

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