Lenedy Lebene v Republic

6. Being dissatisfied with both conviction and sentence, the appellant filed this appeal. a. The prosecution evidence was uncorroborated. c) The trial court failed to properly consider the appellant’s defence. b) The trial court erred in relying on insufficient and contradictory evidence. Appellant’s Submissions 8. The appellant filed written submissions in which he challenged the medical evidence and argued that the finding of penetration was not proved beyond reasonable doubt. He contended that the broken hymen was not conclusive proof of defilement and that other factors could account for such findings. He further argued that the prosecution failed to conduct DNA testing to link the spermatozoa to him. 9. The appellant also questioned the conduct of the witnesses and maintained that the prosecution case contained inconsistencies. He reiterated his defence that he had a grudge with the complainant’s family and urged the court to interfere with both conviction and sentence. Respondent’s Submissions 10. The respondent opposed the appeal and submitted that all the ingredients of the ofience were proved beyond reasonable doubt. It was submitted that penetration was proved through the testimony of the complainant and corroborated by medical evidence. Further, the appellant was positively recognized by the complainant and PW2 using solar light inside the house. 11. The respondent further submitted that the complainant’s age was proved through a birth certificate and that the evidence of the prosecution witnesses was consistent. It was also argued that the trial court properly considered and rejected the appellant’s defence. Analysis And Determination 12. This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusions while bearing in mind that it did not see or hear the witnesses testify. This duty was articulated in Okeno v Republic. 13. The ofience of defilement under section 8 of the Sexual Offences Act requires proof of three essential elements: a. The age of the complainant; b. Penetration; and c. Identification of the perpetrator. Proof of Age 14. Age is a critical ingredient of the ofience of defilement as it determines both the nature of the ofience and the applicable sentence. 15. The prosecution produced the complainant’s birth certificate which indicated that she was born on 4th December 2009. The ofience occurred on 9th April 2024. 16. On the basis of that documentary evidence, the complainant was approximately 14 years old at the time of the ofience. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4191/eng@2026-03-11 2

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17. The authenticity of the birth certificate was not challenged during cross-examination. I therefore find that the prosecution proved the age of the complainant beyond reasonable doubt. Proof of Penetration 18. The complainant testified that the appellant entered their house at night, threatened them with a knife, pulled her onto her mother’s bed and had sexual intercourse with her. She described the act and stated that she felt pain. 19. Her testimony was supported by medical evidence. The clinical officer who examined her the following day observed that her hymen was broken and that a high vaginal swab revealed the presence of spermatozoa. These findings were documented in the P3 form and treatment notes which were produced in evidence. 20. The appellant challenged the medical findings and argued that a broken hymen could arise from other causes and that DNA testing was not conducted. 18. While it is correct that a broken hymen alone may not conclusively prove penetration, in the present case, the medical findings were not the sole evidence relied upon. They were consistent with the complainant’s account and therefore provided corroborative support. 21. In any event, penetration may be proved by the testimony of the complainant alone if the court believes the evidence. This principle was affirmed in Fappyton Mutuku Ngui v Republic. 22. Considering the complainant’s testimony together with the medical findings recorded shortly after the incident, I am satisfied that penetration was proved beyond reasonable doubt. Identification of the Perpetrator 23. The incident occurred at night and the court must therefore exercise caution when dealing with evidence of visual identification. The need for such caution was emphasized in Wamunga v Republic. 25. However, the present case was not one of identification of a stranger but of recognition. The complainant testified that she knew the appellant prior to the incident as he was from the same locality. 26. She further stated that there was illumination from a solar D-light inside the house which enabled her to see the appellant before he switched ofi the light. 27. PW2, the complainant’s sister who was present in the house, corroborated this evidence. She confirmed that the light was on and that she saw the appellant. She also stated that she recognized his voice. 28. Recognition has been held to be more reliable than identification of a stranger, as observed in Anjononi & Others v Republic. 29. Having re-evaluated the evidence, I am satisfied that the appellant was positively recognized by both witnesses. Whether the Evidence Required Corroboration 30. The appellant argued that the evidence was uncorroborated. Section 124 of the Evidence Act provides that a court may convict on the sole evidence of a victim of a sexual ofience if the court believes the victim and records the reasons for that belief. 31. In the present case, the complainant’s evidence was not only consistent but was supported by the testimony of PW2 and the medical evidence. The evidence was therefore sufficiently corroborated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4191/eng@2026-03-11 3

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The Appellant’s Defence 32. The appellant raised an alibi defence and claimed that he was at Lake Baringo between 6th and 12th April 2024. He also alleged that there was a grudge between him and the complainant’s family. The legal position regarding alibi is that an accused person does not bear the burden of proving it. However, where the prosecution evidence places the accused at the scene, the court may reject the alibi. This principle was stated in Kiarie v Republic. In the present case, both the complainant and PW2 placed the appellant at the scene through recognition evidence. The alibi was not supported by any independent evidence. The alleged grudge was also not substantiated. 33. Upon re-evaluating the record, I am satisfied that the trial court properly considered and rejected the appellant’s defence. Whether sentence imposed was harsh and excessive 34. The appellant challenged the sentence of twenty years imprisonment. Section 8(3) of the Sexual Offences Act prescribes a sentence of not less than twenty years imprisonment where the child is aged between twelve and fifteen years. The complainant in this case was 14 years old. The sentence imposed was therefore the minimum sentence prescribed by law. 35. From the foregoing, there is no indication that the trial court applied wrong principles or overlooked any relevant factors in sentencing. I therefore find no basis upon which this Court can interfere with the sentence. 36. Final Orders:Appeal is hereby dismissed on both conviction and sentence. DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF MARCH 2026. ...................... R NGETICH JUDGE DATED, COUNTERSIGNED AND DELIVERED AT ELDORET THIS 12TH DAY OF MARCH 2026. ...................... J.R. WANANDA JUDGE In the presence of: Court Assistant – Brian Kimati Appellant – Present virtually from Eldoret Main Prison. Ms Kosgei for the State. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4191/eng@2026-03-11 4

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