Ndisya v Republic (Criminal Appeal E041 of 2024) [2026] KEHC 5156 (KLR) (13 April 2026) (Judgment) Neutral citation: [2026] KEHC 5156 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CRIMINAL APPEAL E041 OF 2024 CJ KENDAGOR, J APRIL 13, 2026 BETWEEN JOHN MWANIA NDISYA ...................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (An appeal from the conviction and sentence in the CM Magistrates Court at Makueni, Sexual Offence Case No. E018 of 2023, Judgment delivered on 5th June, 2024 by Hon. E. Kemei, RM) JUDGMENT 1. The Appellant was charged with the ofience of Defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 16th August, 2023, between 1730 hours and 2130 hours at [Particulars Withheld] village in Makueni Sub County within Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the genital organ (anus) of M.M.M a boy aged 12 years without his consent in violation of Section 3 of the Sexual offences Act No. 3 of 2006. 2. The Court found him guilty and convicted him of the said ofience. It sentenced him to 40 years in prison. The Appellant was dissatisfied with the Judgment and brought this appeal against conviction and the sentence. The Appeal was canvassed by way of written submissions. Both parties filed their submissions and the Court considered the same at length. 3. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination: a. Whether the ofience of defilement was proven to the required standard thereby warranting a conviction. b. Whether the sentence imposed was warranted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5156/eng@2026-04-13 1
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4. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial Court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR. Whether the ofience of defilement was proven to the required standard thereby warranting a conviction 5. The Court in George Opondo Olunga vs. Republic [2016] eKLR established that the ingredients of the ofience of defilement are: the age of the victim, penetration and proper identification of the perpetrator. 6. I shall start with the element of Penetration. Courts have held that Penetration is proved through the evidence of the victim corroborated by medical evidence. In DS v Republic [2022] KEHC 2502 (KLR), the Court held as follows; “ 19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration”. 7. PW1 was the complainant. He told the Court that the Appellant defiled him on 16th August 2023, and gave a detailed account of how the defilement took place. He stated that the Appellant inserted his penis in his anus and that he felt pain. PW2 and PW3 testified that they found the Complainant at the Appellant’s house at around 930 pm wherein they arrested the Appellant. 8. The Complainant was examined medically the following day at 2 pm, meaning that he was examined within 24 hours of the alleged defilement. The medical examination revealed visible anal lacerations and bruises on the anus. In view of all these facts, I find that penetration was proved. 9. In addition, the age of the Complainant was proved because there was a birth certificate indicating that he was born on 28th August, 2010. Given that the defilement happened on 16th August 2023, it means that he was 12 years at the time of the defilement. 10. Lastly, there were no doubts on the identification of the Appellant as the perpetrator. PW2 and PW3 testified that they found the Appellant and the Complainant in the Appellant’s house. In addition the Appellant, in his defense, admitted that he was with the Complainant that evening and that the Complainant was found in his house. 11. I have re-examined his defence, and I found that it did not shake or cast any reasonable doubt on the prosecution’s case. 12. Based on the factual analysis, I find that the prosecution proved all the three elements of the ofience of defilement. Consequently, I find that the conviction was safe and is thus upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5156/eng@2026-04-13 2
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Whether the sentence imposed was warranted 13. On the issue of the Sentence, Section 8 (3) of the Sexual offences Act provides that: “ (3) A person who commits an ofience 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”. 14. I have relooked at the Victim Impact and the Pre-sentence report. The Pre-sentence report indicated that the Appellant had previous convictions where he had served custodial sentence at the Machakos Prison, Kiganjo Prison, and Kamiti Prison, although it did not find documentary records during the social inquiry. It also showed that the Appellant was unrepentant for his actions. He is single and has no familial responsibilities. I also note that the Complainant is a child living with intellectual disability. 15. In view of all these facts and the circumstances of the case, I find that the sentence imposed by the lower Court was fair and justified. The same is also hereby upheld. 16. In the end, the Appeal fails and is hereby dismissed. 17. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 13TH DAY OF APRIL, 2026 ………………………… HON. C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Appellant – present Ms. Musango, ODPP https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5156/eng@2026-04-13 3
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