Wesley Cheruiyot v Republic

the house. On coming back in the evening, she found the Complainant crying. On inquiry she said that the Appellant took her to PW2’s bedroom where he defiled her. 7. That she checked the child and saw blood. She decided not to tell the Appellant as she feared he would run. She took her to the hospital the following morning. She got a P3. The Police called her husband who escorted the Appellant to the police station. On cross examination she stated that she had left her children at home and not at the neighbour’s. 8. PW3, Patrick Kibet, clinical officer. He examined PW1 on 1st February, 2021. He stated that PW1 and MC narrated the history of defilement to him. On external examination both labia majora and minora were inflamed with bruises and redness. She was feeling pain. Internal examination there was inflammation and redness and painful to finger examination. The hymen was freshly broken. There was inflation at the vagina orifice. There was no discharge. 9. The Appellant was also taken to hospital and tested. He identified the Appellant as the person he examined. He produced P3 Form as P exhibit 2. 10. PW4, MC (initially on first attempt at taking her evidence she was PW1) she stated that it was evening and she and her younger siblings were asleep in the house. She had not locked the door as she customarily did as their mother had not yet returned. As she was a sleep she did not see when the Appellant got in but saw him since there was electricity. That he did bad manners to her in her urinating place. that she felt a lot of pain. In cross examination she identified the Appellant and reiterated he did bad manners. 11. PW5 PC Annah Kola, Investigating Officer. She testified that on 1st February, 2021 PW2 and the complainant made a defilement report. That the Complainant narrated how the Appellant who grazes their livestock put her on the sofa and told her that he would buy her sweets. he removed his penis upon unbuttoning his trouser. 12. That she felt pain and started crying upon which the Appellant left and told her not to tell her mother. When her mother came, she feared telling her but PW2 noticed she was not walking normally. She told her mother. The mother informed her father. She took MC to the police station then to the hospital. She produced the Birth Certificate as P exhibit 1. 13. She charged the Appellant with the help of the Complainant’s father. She visited the scene. The other children were small and could not talk. Her outer clothes were stained but the inner clothes had been changed by the time they were going to the station. The Complainant informed her that there was electricity and saw the Appellant who was their herds boy. The doctor confirmed she had been defiled. Defence Case 14. DW1, the Appellant stated that he was taken to the house of PW2 to work and had been there for a month. He stated that PW2 told him that she was selling potatoes but he had no money. His friend gave him Kshs. 5000 and his employer Kshs. 5000 which he used to buy potatoes from PW2 while still in the firm. He maintained that he had not been informed that that the Potatoes belonged to PW2’s husband. 15. The husband brought a different person to buy them and he told him that he had already purchased the potatoes. That the husband then beat PW2 who had threatened the Appellant that he would see what he has never seen before. That he had not been peaceful and sought to leave employment. That while talking to his employer, he was told to go to the police station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7618/eng@2026-02-23 2

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16. At the police station he stated that he was informed that a woman had reported that he had taken her money. He informed the police that it was he who had given her money. 17. That added he was called again to the station and found PW2 who told him that she wanted him to leave her house to which he obliged. He was released and he was called again for the third time and charged with defilement. 18. He further testified that on the Sunday preceding the arrest he told PW2 that he needed to be going to church. PW2 told her they go to Catholic but he said he attends IGC church. He claimed the husband of PW2 then arrived and he stayed with the husband until evening at the shopping center and was arrested the next day. 19. He denied ever seeing the Complainant and only knew of the two younger boys. 20. The Trial Court having considered the evidence presented, rendered its judgement, found the Appellant guilty of the offence of defilement, convicting the Appellant accordingly and sentencing him to thirty (30) years’ imprisonment. The Appeal 21. 22. Dissatisfied with both the sentence and conviction, the Appellant has now lodged this Appeal challenging the findings of the Trial Court. The Appeal is predicated on 6 grounds of appeal as articulated in the Amended Memorandum of Appeal summarized as follows: i. That the Learned Trial Magistrate erred in law and in fact by failing to find that penetration had not been proved. ii. That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that the prosecutions case was not proved beyond reasonable doubt. iii. That the Learned Trial Magistrate erred in law and in fact by relying on the uncorroborated evidence of a single witness. iv. That the Learned Trial Magistrate erred in law and in fact by failing to consider the Appellant’s defence which was not rebutted by the prosecution. v. That the Learned Trial Magistrate erred in law and in fact by failing top re-call PW2 for further cross examination. vi. That the Appellant was prejudiced during trial when PW2 and PW3 were testifying since never heard them clearly due to internet challenges. The Appeal was heard by way of written submissions. Appellant’s Submissions 23. The Appellant in support of his Appeal cited R v Kipkerer arap Kipkerei and Another [1949] 16 EACA 135 which established that the standard of proof in criminal cases is beyond reasonable standards. He also relied on Dominic Kibet Mwarez vs Republic [2013] eKLR where the Court reiterated that the Prosecution is duty bound to prove the key elements of the offence of defilement beyond reasonable doubt. He argued that the prosecution had the duty to prove critical evidence but failed to. 24. The Appellant submitted that due to network challenges he prayed for the recall of PW2 and PW3 for further cross examination but his prayer was never granted by the Trial Court. He argued that this https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7618/eng@2026-02-23 3

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omission went against the tenets of Article 50 (2) of the Constitution. He further argued that the Trial Court was duty bound to examine the credibility of the evidence and added there were more sensory details that should have ascertained. 25. The Appellant also submitted that the age of the injuries noted in PW3’s report was not established. He further submitted that the mere absence of hymen did not necessarily mean that penetration had occurred. He relied on the case of PKW v republic [2012] eKLR. 26. The Appellant also submitted that the sentence was excessive and urged the Court to be guided by the sentence guidelines 2023 and consider the age of the Appellant. Respondent’s Submission 27. The Prosecution on behalf of the Respondent in the submissions filed on 6th October, 2025, opposed the appeal and maintained that the prosecution’s case was proved beyond reasonable doubt. 28. Reference was made to George Opondo Olunga vs Republic [2016] eKLR to submit that the prosecution bears the burden of proving all elements of the offence and which they had done. 29. The Respondent maintained that the prosecution’s evidence was consistent and that the witnesses corroborated each other without contradictions. The Respondent emphasized that the Trial Court did not disregard the Appellant’s defence. Instead, the Court considered it but concluded that it did not dislodge or weaken the prosecution’s case. 30. On the issue of sentencing, it was submitted that Section 8(2) of the Sexual Offences Act call for life imprisonment and that the sentence of 30 years was lenient and unlawful. Reliance was placed in R vs Joshua Gichuki Mwangi [2024] KESC 3 (KLR) where the Supreme Court upheld the constitutionality of mandatory minimum sentences. Analysis and Determination 31. I have carefully considered the grounds of appeal, the record before me, the rival submissions, the applicable law and the authorities relied upon. As this is a fist appeal, I am duty bound to undertake independent evaluation of all the evidence adduced in the Trial Court and in doing so, I remain mindful that I did not have the opportunity to see or hear the witnesses as they testified. See Okeno vs. Republic [1972] EA 32. 32. The nature of this matter falls withing the ambit of Section 8 of the Sexual Offences Act which provides as follows: - 33. 1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 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. 4. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. This statutory framework defines the offence of defilement and prescribes the corresponding penalties reflecting the seriousness of the offence and the vulnerability of the Complainant depending on age. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7618/eng@2026-02-23 4

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34. In Grounds 1 and 2 the Appellant faulted the Court for convicting him yet according to him the Prosecution had failed to prove ingredients for the offence of defilement beyond reasonable doubt. 35. For the Prosecution to sustain a conviction for the offence of defilement as prescribed by the statutory framework, three essential elements must be established. First, proof of age of the Complainant, demonstrating that indeed the Complainant was a child within the meaning of the law. Second evidence of penetration, that there was penetration even if partial. Third, the positive identification of the perpetrator and proof that the act of unlawful penetration was committed by the identified perpetrator. 36. On the aspect of age, PW5 produced the Birth Certificate of the Complainant P-Exh1 confirming that the Complainant was born on 3rd January, 2014. The Offence occurred on 31st January, 2021. Accordingly, at the time of the offence the Complainant was 9 years. The Complainant was indisputably a child within the meaning of Article 53 of the Constitution and Section 2 of the Children Act and the component of age was well proved credibly. 37. Regarding penetration, Section 2 of the Sexual Offences Act defines penetration as: “ the partial or complete insertion of the genital organs of a person into the genital organs of another person”. 38. The evidentiary threshold for proving penetration, however slight, may be satisfied through, the testimony of the complainant, medical examination, witness account or other corroborative evidence. In the present case, the Complainant testified that the Appellant did bad manners to her in her urinating place and that she felt pain. 39. The evidence of the Complainant was corroborated by the evidence of PW3, who filled and produced the P3 (P-Exh2). The complainant was examined a day after the incident and medical evidence found that both the labia majora and minora were inflamed with bruises and redness and that the complainant was feeling pain. The hymen was freshly broken. 40. In Wachira v Republic [2024] KEHC 5972 (KLR) the Court stated that: “ Unlike other crimes where invariably eye witness evidence is available, it is seldom that eye witness accounts would be available in a sexual offence as the act will always be perpetrated in secrecy away from the public eye. That explains why the evidence to be relied upon more often than not will be the evidence of the Complainant corroborated by medical evidence (where available) and circumstantial evidence.” (emphasis) 41. The Complaint’s testimony did not stand in isolation, the same was corroborated by medical evidence and the testimony of PW5 who examined the Complainant. I am satisfied the ingredient of penetration was conclusively proven. 42. On the element of identification, the Complainant testified that she knew the Appellant. She identified the Appellant by name as Wesley in open Court and described him as the person who was herding their livestock. In both in examination in chief and cross examination stated that the Appellant subjected her to “bad manners”. 43. PW2 corroborated this account by testifying that she knew the Appellant as their employee who had been with them for less than a month and testified that the Complainant told her that the Appellant has allegedly defiled her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7618/eng@2026-02-23 5

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44. The Appellant also confirmed that the Complainant and PW2 were known to him prior to the incident. 45. The Appellant’s identification was by way of recognition and by name. They had spent a considerable amount of time together for the minor to positively identify him. In Maina v Republic [2024] KEHC 3870 (KLR), the High Court emphasized that recognition, especially where the accused is known to the complainant, carries greater weight and reduces the possibility of mistaken identity. 46. Similarly, in Amwogo v Republic [2024] KEHC 10129 (KLR), the Court reaffirmed that recognition evidence, when consistent and corroborated, meets the legal threshold for identification in sexual offence cases. 47. I am persuaded that the element of identification has been established to the requisite legal threshold of proof. 48. The Appellant contends under Ground 3 of the Appeal that the Trial Court erred in relying on the uncorroborated evidence of a single witness. 49. Section 124 of the Evidence Act states as follows: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth” 50. By virtue of the proviso to Section 124 of the Evidence Act, the testimony of the Complainant in sexual offences can, in appropriate circumstances be sufficient for a conviction provided the Trial Court records reasons for believing the Complainant is truthful. 51. The Complainant described the defilement explicitly and the Trial Court evaluated the complainant’s evidence, found it credible, and duly recorded reasons for believing her account of events. That testimony was corroboration by that of PW2 and PW3 coupled with medical evidence which further strengthened the Prosecution’s case. I find no merit in the Appellant’s contention that the conviction was improperly based on uncorroborated evidence. 52. The Appellant raised the issue under Ground 4 that his sworn defence was not considered and that the prosecution did not debunk it. 53. Looking at the Appellant’s defence, The Appellant essentially sought to portray the charge as arising from a dispute over potatoes and his employment relationship with PW2 and her husband. However, this line of defence did not directly address the allegations of defilement. 54. His assertion that PW2’s husband assaulted PW2 and she thereafter threatened the Appellant is equally unsupported. The Appellant’s testimony that he was repeatedly summoned to the police station initially over a money allegedly owed to a third party, then over leaving PW2’s house, appears designed to portray the charge as retaliatory. He did not demonstrate any malice or ulterior motive on the part of PW2 or her husband sufficient to displace the prosecution’s case. The Trial Court was therefore https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7618/eng@2026-02-23 6

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entitled to reject the defence as implausible and incapable of raising any reasonable doubt in the prosecution’s case. 55. In Masila v Republic [2024] KEHC 17068 (KLR) the Court stated that:“ …A court is not obliged to accept a defence story at face value; it must weigh it against the prosecution’s evidence. The High Court in Joseph Maingi v Republic [2016] eKLR observed that a trial court’s characterization of a weak defence as a mere denial is not an error per se, especially where the judgment makes it clear that the court did consider it. What is required is that the court shows it has evaluated the defence – and in our case, the record demonstrates that the magistrate did so…” 56. A defence must be weighed against the totality of the evidence, and where it fails to displace the prosecution’s case, it cannot avail a party. 57. I have perused the judgment and evaluated the evidence on record vis-à-vis the defence. In my considered view the defence was not sufficient to challenge the very strong evidence by the prosecution. The Appellant’s narrative was riddled with twists and turns inconsistent in material. I am satisfied that the Trial Court properly considered and dismissed the Appellant’s defence. 58. In Grounds 5 and 6 the Appellant faults the Trial Court for failing to recall of PW2 and PW3 for further cross examination. He argued that his right to fair trial under Article 50 of the Constitution was violated. 59. The power to summon or recall a witness at any stage of the proceedings is vested under Section 150 of the Criminal Procedure Code. This power is designed to ensure that all material evidence necessary for a fair and just determination of the case is placed before Court. It is not an automatic entitlement to either party but rather a judicial discretion exercised where the interest of justice so demands and the additional testimony is considered essential. 60. Mativo J (as he then was) in Joseph Ndungu Kagiri v Republic [2016] KEHC 4153 (KLR) opined that recall of witnesses is not a matter of right but of necessity, and an Appellate Court will only interfere where it is shown that the discretion was exercised capriciously or in a manner that occasioned prejudice to the accused. 61. In the present case, the record does not disclose that the application for recall was improperly declined. On the contrary the Court acceded to the Appellant’s request for recall. However, PW2 and PW3 were not subsequently made available for one reason or another and when they were availed there were challenges beyond the Court’s intervention. 62. The failure cannot be attributed to judicial caprice or denial of fair trial the Appellant had already been afforded adequate opportunity to cross examine them during trial and no prejudice has been demonstrated to have arisen from their absence. Accordingly, these grounds of appeal are devoid of merit. 63. As regards the sentence, the Appellant prayed that the sentence be set aside claiming the same to be excessive. Conversely, on 6th October, 2025, the Respondent filed a Notice of Enhancement of Sentence seeking to have the thirty (30) years’ imprisonment imposed by the Trial Court enhanced to life imprisonment on the basis that it was unlawful. When asked by the Court about the Respondent’s Notice, the Appellant opted to leave the matter to the Court. 64. Sentencing as judicial function is exercised within the confines of the law. A sentence must be lawful but also proportionate to the offence and the circumstances of the offender. Where a sentence is shown https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7618/eng@2026-02-23 7

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to be illegal, an Appellate Court is duty bound to interfere, irrespective of whether the Appellant has challenged it. 65. Section 8(2) of the Sexual Offences Act expressly provides that a person convicted of defilement with a child aged eleven years or below shall be sentenced to life imprisonment. 66. The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigations in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) addressed the constitutionality of mandatory and minimum sentences to wit:(16) 67. Although sentencing was an exercise of judicial discretion, it was Parliament and not the Judiciary that set the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in a Statute must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature could not be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence was set in the Statute, the Legislature had already determined the course, unless it was declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process was reversed. Further in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) the Supreme Court faulted the Court of Appeal for interfering with the sentence of life imprisonment that had been imposed by the Trial Court and upheld by the High Court. The Court of Appeal had substituted the life sentence with a fixed term of 40 years. The Supreme Court found that:(68) Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments…. (69) We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences. 68. The Apex Court affirmed the prevailing judicial position that unlawful sentences must be corrected to align with statutory provisions. Section 8(2) of the Sexual Offences Act prescribes life imprisonment as mandatory and that deviation amounts to illegality even if it the outcome is enhancement. 69. Accordingly, I find the appeal both on conviction and sentence devoid of any merit and I hereby dismiss it. 70. Further I find that the sentence of thirty (30) years’ imprisonment imposed by the Trial Court was unlawful. The same is hereby set aside and substituted with the lawful sentence of life imprisonment. It is so ordered. DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 23RD DAY OF FEBRUARY, 2026 ___________________ MOHOCHI S.M https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7618/eng@2026-02-23 8

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JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7618/eng@2026-02-23 9

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