Nkunja v Republic (Criminal Appeal E045 of 2025) [2026] KEHC 5797 (KLR) (28 April 2026) (Judgment) Neutral citation: [2026] KEHC 5797 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MERU CRIMINAL APPEAL E045 OF 2025 SM GITHINJI, J APRIL 28, 2026 BETWEEN JOHN NKUNJA ....................................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT JUDGMENT 1. John Ngunja, the Appellant herein was charged in the Lower Court with the offence of Sexual assault, contrary to Section 5(1) (a) (i) (2) of the Sexual Offences Act No. 3 of 2006. 2. The particulars of the offence are that on the 1st day of November, 2020 at (particulars withheld) location in (particulars withheld) East Sub-County, within Meru County, the Appellant unlawfully assaulted one J. K. using his fingers to penetrate the vagina of the said J.K, a child aged 12 years. 3. The Appellant also faced an alternative Count of committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 4. The particulars hereof being that on the 1st day of November 2020 at (particulars withheld) Location in (particulars withheld) East Sub-County, within Meru County, the Appellant herein intentionally and unlawfully touched the vagina of J.K, a child aged 12 years, using his fingers. 5. The complainant herein is a mentally challenged child and given her condition she offered her evidence through an intermediary, who’s her mother. She gave evidence as PW-3. Her case is that on 1/11/2020 she was at home alone. The Appellant who’s their neighbour went and called her. He requested her to accompany him to the shop for him to buy her “ngumu” (a small hard Mandasi). She agreed. On the way he led her into a garden where he removed her clothes, inclusive of a red under pant. The Appellant did not remove his clothes. He then inserted his infinger in her private part (vagina). After he did that he let her go. She went home and told no one. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5797/eng@2026-04-28 1
page 1 of 3
6. The mother gave evidence as PW-1. Her evidence is that the victim herein was born on 1st July, 2012. In the year 2020 she was 7 years old. She was mentally challenged and was attending a special needs school. 7. On 1/11/2020 she left the victim at home with her other siblings and went to the Church at 9.30 am. She returned home at 2.00 Pm. She found the victim alone as the other siblings had visited a neighbouring home. Whenever she approached the victim, the victim was running away from her. She went to a neighbouring home, and the mother later went to pick her up. She asked her why she was behaving that way, and she disclosed that while the mother was away in church, John Ngunja, the Appellant herein went and picked her from home to go and buy her “ngumu”. On the way, he took her under a tree, laid her on the ground, and inserted his index finger in her private parts. When the mother went to the toilet where the child had relieved herself, she noted presence of blood stains. Together with the victim they reported the case at Antuanduru Police Post. They were referred to Muthara Police Station where they went and reported the matter. 8. At the Police Station they were issued with P3 form and PRC form of which they took to Muthara Sub-County Hospital. The victim was examined by PW-2. It was noted that she had a whitish discharge on her outer vagina walls. Hymen was torn and her panty also had a whitish discharge. 9. Labia Majora and Minor were normal. Lab tests done were negative. On 2/11/2020 her P3 and PRC forms were filled by Lucy Karario. 10. PW-4 Investigated the case. On 3/11/2020 the Appellant was arrested and charged with the offence of defilement. He was released on bond and absconded. He could not be traced for a while and the matter was withdrawn. Later he was traced and arrested. The charge was substituted with the current one. 11. The Appellant gave sworn testimony in his defence and called no other witness. He alleged that PW-1 used to threaten him saying one day he’ll face it (nitakuonyesha). They used to quarrel over boundary and fence. She had threated to have him jailed. She raised a similar allegation against another man called Ezekial Muruingi, in Criminal Case No. 11 of 2020 who was jailed for 10 years. He alleged to had been falsely accused. 12. The trial Court evaluated the evidence and found the Appellant guilty of the offence in the main Count. He was convicted of it and sentenced to serve 15 years imprisonment. 13. The Appellant dissatisfied with the said sentence preferred an appeal to this Court on the grounds that:1. Given the circumstances of the case the sentence imposed is harsh and excessive. 2. The sentence did not take care of the period spent in remand. 14. The Appeal was canvassed by way of Written Submissions, and both sides filed their respective submissions. 15. Section 5(2) of the Sexual Offences Act, which carries the sentence of the offence of Sexual Assault, states:“ A person guilty of an offence under this section is upon conviction liable to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life”. 16. The statute therefore sets a serious sentencing range, but not an exact sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5797/eng@2026-04-28 2
page 2 of 3
17. The sentencing Policy Guidelines require Courts to base sentencing on:Proportionality – punishment must match the gravity of the offence.Circumstances under which the offence was committed.Harm to the victim – Physical and Psychological impact.Aggravating and mitigating factors. 18. The Appellant assaulted sexually, a mentally challenged child. He therefore targeted a vulnerable victim, causing her severe psychological and physical harm. By doing so, he abused the trust the child had of him as a neighbour. The child given her condition was defenseless. These are serious aggravating factors. 19. The Appellant did not show remorse, and had even absconded at one point, in an effort to avoid responsibility for the offence. 20. The Court finds that the aggravating factors outweigh any mitigating circumstances advanced. The custodial sentence meted against the Appellant was not only warranted but inevitable. The Court took due consideration of the period spent in remand when it indicated the sentence is to run from 24/4/2023. 21. The Appeal therefore lacks merit and is hereby dismissed. DATED AND DELIVERED AT MERU THIS 28TH DAY OF APRIL, 2026. S.M. GITHINJI –JUDGE 28/4/2026 In the presence of:Appellant present in Meru G.K Prison. Mr. Irungu for the State/Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5797/eng@2026-04-28 3
page 3 of 3