Erick Kiprono Kirui v Republic

a. That the learned trial Magistrate erred in law and fact by convicting the Appellant against the weight of evidence adduced. b. That the learned trial magistrate erred in law and fact by rejecting the Appellant’s defence without giving it proper consideration. c. That the learned trial magistrate erred in law and fact by failing to appreciate that he had been detained in custody beyond the period prescribed by the law. d. That the learned trial magistrate erred in law and fact by meting out an unconstitutional life sentence against the Appellant. 6 The Appellant therefore prays that the Appeal be allowed and the sentence imposed against him quashed. 7 It is trite law that a first appellate court has the duty of re-assessing or re-evaluating the evidence presented before the trial court and arrive at its own conclusions on both matters of fact and law while being mindful of the fact that unlike the lower court it did not have the advantage of watching the demeanour of witnesses {(see the case of Okeno vs Republic ( 1972) EA 32}. 8. Following voire dire examination, M.C( “the Complainant’’) was allowed to make only an unsworn statement. She told the court that she was a resident of Olenguruone and lived with her mother known as KC. She was 9 years old at the time of her testimony and was a class 2 pupil at Olenguruone D.E.B Primary School. 9. On a day the Complainant only stated to be a Monday, the Appellant who she also named as Baba Chela invited her to spend the night in his home. According to her Chela’s who was the Appellant’s wife was not at home as the Appellant had chased her away. The Complaint’s mother was at the time in police custody. 10. The Complainant said she obliged and went to the Appellant’s home. Chela and one Gogo were to sleep on the floor in the Appellant’s house, while the Appellant would sleep in his bed. The Appellant, however, invited the Complainant into his bed and she climbed onto the bed with Gogo. Then the Appellant is said to have removed her pant and did “bad manners” with her. She felt pain in her vagina. Chela was not present when the Appellant allegedly did the act while Gogo was asleep at the time. 11. The Complainant informed their neighbour called Memo about the incident. She was taken for medical attention in a hospital at Olenguruone and she identified her medical report in court. The Complainant further stated that the Appellant was arrested after the said Memo made a report to the police. She pointed at him in court as the one who had defiled her. 12. PW2 was the area Assistant Chief. On 21st December, 2020 he received information from one Karen Chepkorir about a child who had been defiled and had difficulty walking. He and his area “Nyumba Kumi’’ members met and interviewed the Complainant. The latter is said to have related that one Erick Kiprono had defiled her. 13. The prosecution subsequently failed to procure attendance of other witnesses. The Appellant was put on his defence and chose to give sworn evidence. He told the court that on 4th January, 2021 he was at home for Christmas when he heard that “Nyumba Kumi’’ members were looking for him. He was thereafter arrested for allegedly defiling a child. A child went to a police station where he had been detained and pointed at him as the defiler. The Appellant denied the ofience saying that he was maliciously implicated by one Gladys who was his neighbour. He claimed to have had difierences https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5297/eng@2026-04-21 2

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with Gladys over fights involving their children and she had warned him. According to the Appellant, Gladys had been jailed and released at the time of his arrest. 14. The Prosecution and Defence Counsel filed written submissions which I have perused against the record. 15. I will consider all the grounds of appeal together. It is indisputable based on the Complainant’s evidence that she was a minor given that she was in class 2 at the time material to the case. There is therefore no ground on which to doubt that she was 10 years old or thereabouts at the time. Medical evidence is not mandatory to prove her age in the circumstances as implied by the Appellant. 16. 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 person’’. Genital organs include the whole part of male and female genital organs including the anus. 17. Section 143 of the Evidence Act further provides; “ No particular number of witnesses are required to prove any given fact’’. Indeed evidence is not counted but rather it is weighed. Even the evidence of one witness may be sufficient to prove a fact if the evidence is credible (see case law in Benjamin Mbugua Gitau eKLR vs Republic (2011). 18. Pursuant to the proviso to section 124 of the Evidence Act, the court may convict an accused person in sexual ofiences cases on the basis of the victim’s evidence only, if it is satisfied that the victim spoke the truth implicating the accused person. 19. The Complainant’s evidence as to the Appellant’s complicity is not discredited. The trial court rightly found that she spoke the truth implicating the Accused she knew as their neighbour. The Appellant has not stated the said Gladys’ relationship to the Complainant that allegedly motivated her to implicate him. 20. If the Appellant was detained by the police beyond the period prescribed by the constitution as alleged in the Appellant’s Grounds of Appeal, then the proper remedy is an action for damages and not a ground for acquittal. In regard to the appeal as to sentence, the sentence of life imprisonment imposed is the lawful one where the victim is under the age of 12 as per section 8(2) of the Sexual Offences Act. That enactment is in the following terms; “ A person who commits an ofience of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”’ 21. The sentence meted out by the lower court is thus lawful. 22. All the grounds of appeal fail in the premises, with the result that the Appeal is dismissed in its entirety. J.M. NANG’EA - JUDGE. JUDGEMENT DATED, SIGNED AND DELIVERED AT NAKURU THIS 21ST DAY OF APRIL, 2026. In the presence of: The Prosecution Counsel, Mr Wakasyaka https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5297/eng@2026-04-21 3

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The Appellant (In person). The Court Assistant (Mr. Ng’eno) J.M. NANG’EA - JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5297/eng@2026-04-21 4

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