Dennis Kipkoech Ruto v Republic

1. The learned trial magistrate erred in law and in fact by convicting the appellant in a prosecution case, where penetration of the complaint at the genitalia (Vagina) was not proved to have been penetrated by the appellant's genital. 2. The learned trial Magistrate erred in law and in fact by convicting the Appellant, but failed to note that the appellant was identified correctly as the person who defiled the complaint. The evidence on record is doubtful. 3. The learned trial magistrate erred in law and in fact by convicting the appellant, but failed to note that the evidence in the record was contradictory, uncorroborated, and therefore insufficient to support a conviction of life imprisonment. 4. The learned trial magistrate erred in law and in fact by convincing the appellant in the prosecution case, which was not properly investigated, lacked credibility, was well framed, but the trial magistrate never realised all these. It was an error in law to convict me on such a case since it was proved against the appellant as required by law. 5. The learned trial Magistrate erred in law and in fact by not evaluating his defence when given under oath and failed to advance reasonable grounds why the defence was not admissible. 6. The Appellant therefore prayed that the Appeal be allowed, the conviction quashed, the sentence set aside, and he be set at liberty. 7. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions dated 20th May, 2025, while the Respondent’s submissions are dated 28th July, 2025. Appellant’s Submissions 8. The Appellant submitted on three issues:i. Whether the prosecution proved its case beyond a reasonable doubt. ii. Whether the defence of the appellant's case was adequately considered. iii. Whether the sentence imposed on the appellant is excessive in light of life expectancy. 9. Acknowledging that this is the first Appeal, he submitted that this Court has the power to re-evaluate the evidence tendered in the subordinate court and arrive at its independent findings, in support of this, he cited the case of Stanley Kiprono Bett v Republic [2022] eKLR. 10. On whether the prosecution proved its case beyond a reasonable doubt, he submitted that the Prosecution failed to prove its case beyond a reasonable doubt. In support of his position, he relied on Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, where Mativo J(as he then was) held that:“ To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant's guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered, if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty.” 11. Further reliance was placed on the case of Pius Arap Maina v Republic [2013] eKLR, where G.K Kimondo J reiterated that the prosecution must prove a criminal charge beyond reasonable doubt and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7729/eng@2026-06-04 2

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any evidential gaps in the prosecution's case raising material doubts must be made in favour of the accused. 12. The Appellant submitted that under Section 107 of the Evidence, the prosecution was required to prosecute its case, without any corresponding requirement on his part to defend his defence. In this, he cited the case of Republic V Silas Macongo Onzere Alias Fredrick Namema [2017] eKLR where R. Nyakundi J stated that;“ In our criminal justice system there is no duty on the accused to prove anything on the allegations of a criminal nature filed by the state in a court of law. That burden of proof of an accused's guilt rests solely on the prosecution throughout the trial save where there are admissions by the accused person." 13. On whether the offence of defilement was proved to the required standards, the Appellant argues that the prosecution failed to prove the charge of defilement to the required legal standard, specifically regarding the positive identification of the perpetrator. He argued that although the victim's age is not in dispute, the Appellant contends that the conviction relies solely on the unsworn testimony of the Complainant without any independent corroboration. 14. He submitted that while PW2 observed the parties in a compromising position, they did not witness the act itself, and the Complainant’s failure to name the Appellant, despite claiming to know him, further weakens the reliability of the identification. Consequently, the Appellant maintains that the evidence is insufficient to bridge the gap between mere suspicion and proof beyond a reasonable doubt. To support his case, a reliance was placed on Bernard Kebiba vs. Republic [2000] eKLR. 15. He further cited the case of Chila vs. The Republic [1967] EA 722 at page 723 where the court stated as follows on corroboration in sexual cases:“ ... the judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that here evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.” 16. The Appellant submitted that the trial magistrate committed a grave misdirection by failing to properly caution himself on the inherent dangers of relying on uncorroborated evidence in a sexual offence case. Consequently, the Appellant submitted that the convictions cannot be sustained unless the court is entirely satisfied as to the veracity of the complainant's testimony. 17. He submitted that it is a settled matter of legal practice that in such cases, corroboration is necessary to ensure the safety of a conviction and to bridge the gap between mere allegation and proof beyond a reasonable doubt. 18. Regarding the medical evidence, the Appellant submits that the complainant’s medical report significantly undermines the prosecution's case, as it confirmed the hymen was intact and found no traces of blood, pus, or spermatozoa. While the report noted a swelling of the labia majora, the Appellant contends that this is inconclusive, as such inflammation can result from various external factors or medical conditions, including yeast or bacterial infections, rather than sexual contact. 19. Furthermore, he submitted, the absence of DNA evidence or a forensic swab linking the Appellant to the site of the alleged injury precludes any adverse inference being drawn against him. Given that the medical findings are neutral at best, the conviction rests entirely on the testimony of PW1; however, as https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7729/eng@2026-06-04 3

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she is a child of tender years, her evidence must be subjected to the strict legal requirements governing the admission and corroboration of such testimony to ensure the safety of the conviction 20. The Appellant submitted that the testimony of PW-2 fails to provide the necessary corroboration for the Complainant’s allegations, as the witness did not observe any act of sexual intercourse; rather, he testified that the Complainant remained fully clothed. The trial court, therefore, erred in misapprehending this evidence to find corroboration where none existed, especially as the Complainant herself failed to provide a clear account of the nature and occurrence of the alleged penetration. Furthermore, the conviction rests on the unsworn testimony of a child of extremely tender years, which lacks the credibility and independent support required by law. In the absence of "watertight" evidence to bridge these gaps, the Appellant maintains that the conviction is unsafe and cannot be sustained. 21. The Appellant further contended that the trial magistrate erred by failing to accord any weight to the defence, effectively shifting the burden of proof onto the Appellant. It is submitted that the prosecution's case was built upon fabricated testimony stemming from a long-standing grudge; specifically, the Appellant asserts that a prior disagreement with the complainant’s parents led to the mother inciting his wife to desert their matrimonial home. 22. He submitted that by summarily dismissing this defence without due consideration, the learned magistrate overlooked a plausible motive for the institution of these charges. 23. He therefore submitted that, given the glaring inconsistencies and contradictions in the evidence, the Appellant maintains that the conviction is inherently unsafe and prays that the sentence be set aside and he be set at liberty on all counts. 24. In respect to the sentence imposed on the appellant being excessive, the Appellant contended that the sentence of life imprisonment is manifestly harsh and excessive. It is submitted that the trial court failed to exercise its sentencing discretion properly by ignoring relevant mitigating factors, such as the Appellant’s status as a first-time offender. 25. Relying on the principles in Ogolla s/o Owuor v Republic and Bernard Kimani Gacheru v Republic, [1954] EACA 270, the Appellant argued that an appellate court must interfere where a trial court overlooks material factors or acts on wrong principles. Furthermore, citing the evolving jurisprudence in Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) , the Appellant maintained that mandatory indeterminate life sentences are unconstitutional, as they violate the right to dignity and the principle of equality before the law. 26. In conclusion, the Appellant submits that the prosecution failed to prove its case beyond a reasonable doubt due to the lack of corroboration, medical inconsistencies, and the disregard for the defence's theory of fabrication. Consequently, the Appellant prayed that the conviction be quashed, the sentence set aside, and that he be set at liberty on all counts. Respondent’s Submissions 27. The Respondent opposed the appeal, asserting that the prosecution successfully proved the victim's age, the perpetrator's identity, and the occurrence of penetration through the testimony of five witnesses. The victim (PW1), a child of tender years, provided an unsworn account of being grabbed and muzzled by the Appellant, who then committed the act of defilement. This testimony was supported by her father (PW2), who witnessed the Appellant with lowered trousers while the complainant lay undressed on a bed, leading to a physical confrontation between the two men. Furthermore, the medical evidence provided by Dr. Irene Osore (PW4) confirmed that the eight- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7729/eng@2026-06-04 4

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year-old victim sustained a perennial tear and grievous harm caused by a blunt object, with injuries consistent with a recent assault. 28. The Respondent maintained that all essential ingredients of the offence were proven beyond a reasonable doubt, specifically regarding the victim's age, the identity of the perpetrator, and the act of penetration. The victim’s age was conclusively established through the production of a birth certificate. Identity was not a point of contention, as the Appellant admitted that the victim had indeed brought clothes to his house on the day the incident occurred. Furthermore, the Respondent asserted that the medical findings, which documented a perennial tear and injuries amounting to grievous harm, serve as conclusive physical proof that penetration took place. 29. The Respondent submitted that the trial magistrate duly considered the defence but rightly found it lacking credibility. The Appellant’s claim of a grudge and fabrication was not sufficient to explain the physical injuries sustained by the minor. To support his case, reliance was placed on the case of Republic Versus Silas Macongo Onzere Alias Fredrick Namema [2017] eKLR, where the role of the prosecution was laid out to mainly prove the guilt of the accused person, which is the current position in the main hearing of the defilement case. 30. Regarding corroboration, the Respondent argued that it is not strictly applicable in defilement cases, which often occur in enclosed spaces. The evidence of the victim is sufficient if the court finds the witness credible and the facts believable. 31. On sentencing, the Respondent submitted that the Appellant was originally handed a life sentence. While the Respondent acknowledges current jurisprudence finding indeterminate life sentences unconstitutional and cruel, it does not object to the court imposing a determinate sentence. However, the Respondent urged the court to maintain a stiff penalty given the nature of the act and the injuries sustained by the victim. 32. The Respondent submitted that the prosecution's case was consistent and watertight, while the appeal on conviction lacks merit. The court is urged to dismiss the appeal in its entirety Analysis and Determination 33. This being a first Appeal, this Court has a duty to re-examine afresh all the evidence adduced before the trial court, analyse it and arrive at its own conclusions, bearing in mind that this Court did not see or hear the witnesses testifying. The court in the case of Okeno v. R [1972] EA 32, at page 36, that:“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R [1957] E A 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M. Ruwala v. R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v. Sunday Post [1958] EA 424”.19.” 34. The complainant, M.K(PW2) testified that on 7th May, 2022, her father removed the accused's clothes from the drying line and asked her to deliver them to the accused’s house. The accused was their neighbour, residing in House 4, while they lived in House 2. She stated that upon entering his house, the accused covered her mouth, lowered his trousers, undressed her, and proceeded to defile her. She https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7729/eng@2026-06-04 5

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attempted to scream, but he kept her mouth covered. Shortly after, her father pulled back the curtains and discovered the accused in the act. A physical confrontation ensued between her father and the accused, during which she escaped and went home. The landlord, her mother, and other neighbours were alerted, and the matter was reported to the police. She was subsequently taken to the hospital. 35. During cross-examination, she clarified that the door was open during the incident and that she heard a knock before her father pulled the curtains. She confirmed the arrival of the landlord, Mr. Ondieki, and the subsequent arrest of the accused. 36. S.N.O (PW2), the complainant’s father, testified that on the material date at approximately 2:00 PM, he returned home from work. As it was about to rain, he removed the accused's clothes from the line and, upon the accused's arrival, instructed PW1 to deliver them. After a short while, he heard noises from the accused's house and went to investigate. He found PW1 undressed and the accused with his trousers lowered. The accused assaulted him, tearing his jacket and shirt and causing him bruises. He called for the landlord, and although the landlord did not respond immediately, his wife heard came and raised the alarm. Neighbours gathered, the accused was apprehended, and the child was taken to PGH Nakuru. 37. On cross-examination, he identified the accused as Dennis Kipkoech Ruto, a neighbour he had known for three years. He noted that while he found the door open and saw his daughter on the bed, she had managed to dress by the time the landlord arrived. On re-examination, he added that he lost his phone during the scuffle and that the police collected his torn clothes and PW1’s clothing as evidence. 38. PC Damaris Njane(PW3), the Investigating Officer, testified that she was tasked with investigating this case under OB Number 30/7/5/2023. Her investigation affirmed the child’s account of being sent to deliver clothes before being defiled and subsequently rescued by her father. 39. On cross-examination, she clarified the timeline, stating the incident occurred at approximately 3:00 PM on 7th May, 2022. She confirmed the victim was taken to the hospital the same day and the accused was arrested on the same day. 40. Dr. Irene Osore (PW4) testified on behalf of the treating physician, Dr. Humbi. Based on the medical report, she confirmed a fresh perineal tear at the 6 o'clock position with whitish discharge and numerous epithelial and pus cells. While the hymen and anus remained intact, there was excretion in the perineal injury. The minor was placed on STI treatment and Post-Exposure Prophylaxis (PEP). The doctor concluded that the minor had been defiled. 41. The complainant’s mother, LBM(PW5) testified that she was on her way to the hospital when her husband called her. Upon returning home, she found her husband shirtless and bruised and being held by the landlord, while her 8-year-old daughter was crying. She raised an alarm, reported the matter at Kaptembwa Police Station around 3:00 PM, and took her daughter to the hospital. 42. In his defence, the accused admitted to being a neighbour of the victim but denied the allegations. He claimed that on the material day, he had been away looking for a house. Upon his return, he noticed his clothes were missing from the line. He alleged that PW1 brought the clothes to his house, and immediately upon her entry, her father (PW2) began screaming that PW1 was being defiled. 43. Under cross-examination, the accused claimed he had a prior grudge with the victim’s parents, alleging that PW5 had incited his wife to leave him. He denied any physical fight with PW2 and maintained that the victim had been coached to frame him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7729/eng@2026-06-04 6

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44. This Court has revaluated the evidence, considered the entire proceedings before the trial court and the submissions by both parties in this Appeal. On the whether the prosecution proved its case, the Court of Appeal in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) held:“ Under the Sexual Offences Act the main elements of the offence of defilement are as follows: (i) The victim must be a minor, and (ii) There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice. Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond a reasonable doubt.” 45. Accordingly, the Prosecution must prove the age of the victim, penetration and identification of the perpetrator. 46. Regarding the age, the charge sheet, the P3 form and the PRC form all indicated the Complainant’s age as 8 years. The copy of the Birth Certificate (PExh. 1) showed that she was born on 31st May, 2013. At the time the offence was committed on 7th May, 2022, the Complainant was about 8 years and 11 months old. It is thus clear that the complainant was under 11 years of age as provided for under Section 8 (2) of the Sexual Offences Act under which the Appellant was charged. 47. On the second element, Penetration is defined in Section 2 of the Sexual Offences Act to mean “the partial or complete insertion of the genital organs of a person into the genital organ of another person.” 48. The medical records produced confirmed that the Complainant had a perineal tear of 0.2 mm at 6 o'clock with excoriation around the perineal region. The Hymen was, however, intact. It is now established that penetration need not be complete to break any hymen; even partial penetration is still considered as defilement under section 2 of the Sexual Offences Act. The Court of Appeal in Ondeng' v Republic (Criminal Appeal 5 of 2013) [2014] KECA 523 (KLR) had this to say on this issue:“ We agree with the first appellate court that to establish defilement, it is not necessary that the hymen must be broken; even partial penetration of the female genital by male genital will suffice to constitute the offence.” 49. Indeed, to establish the act of defilement, the law requires proof of sexual interference, which is defined as even the slightest penetration of the complainant's vulva or labia majora. The complainant (PW1) provided a direct account of the accused inserting his "thing of urinating" into hers, a narrative corroborated by her father (PW2) finding her undressed in the accused's house. Further, the medical testimony of PW4 confirmed a fresh perineal tear at the 6 o'clock position. While the hymen remained intact, the presence of a fresh injury and discharge serves as proof that penetration occurred, though not complete. This court, therefore, finds that the element of penetration has been proven beyond a reasonable doubt. 50. Regarding the identity of the offender, the court notes that this is a case of recognition rather than the identification of a stranger. The accused was a long-term neighbour known to both the complainant and her parents for over three years, residing within the same compound in House 4. The incident occurred in broad daylight, between 2:00 PM and 3:00 PM, and culminated in the accused being apprehended at the scene following a physical struggle with PW2. 51. While the accused suggested a frame-up stemming from a domestic grudge with the complainant’s parents, the court finds this defence implausible, as it fails to explain the fresh physical injuries sustained by the child. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7729/eng@2026-06-04 7

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52. The proximity of the parties and the circumstances of the immediate arrest leave no room for mistaken identity. Consequently, the prosecution has positively placed the accused at the centre of the commission of the offence. 53. On the issue of the need for corroboration of the minor’s testimony, this court is guided by Section 124 of the Evidence Act, which stipulates that while the testimony of a victim in sexual offence cases may suffice if the court finds it credible, such evidence must be weighed with caution. 54. In the present case, however, the complainant’s testimony does not stand alone; it is powerfully corroborated by her father (PW2), who caught the appellant in the act. Furthermore, the medical evidence of a fresh perineal tear serves as independent physical corroboration of the victim's account. This court is, therefore, satisfied that the trial court was well-guided by the law and correctly applied the facts to the evidence in reaching its conviction 55. On whether the sentence is harsh and excessive, Section 8 (1) and (2) of the Sexual Offences Act provides that:“ (1) A person who commits an Act which causes penetration with a child is guilty of an offence termed as 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.” 56. It is manifest from the facts of this case that the Appellant committed a heinous act against a defenceless and innocent child of tender years. Such an offence not only violates the physical integrity of the victim but also inflicts profound trauma that remains a permanent scar throughout her life. In mitigation, the Appellant pleaded for leniency, stating that he is a first offender with a family and two children who depend on him for support. 57. Though taking note of these mitigating factors, the learned trial Magistrate sentenced the Appellant to life imprisonment and in doing so held:“ The charge the accused is facing carries a mandatory sentence. This court’s hands are tied and cannot exercise discretion, even if this is one that this court would have otherwise meted out a different sentence.” 58. Indeed, the sentence is a mandatory one that cannot be altered by the court and interpreted to give a certain term limit. This was reiterated by the Supreme Court in Republic v Julius Kitsao Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) where the Apex Court held that the Court of Appeal erred in law by substituting the sentence of life imprisonment with a 40-year sentence, thereby usurping the legislative power to define sentences. 59. In this case, the trial court was bound by the statutory mandates of the Sexual Offences Act. Consequently, this Court is constrained from interpreting the term life imprisonment to assign a finite duration. In the circumstances, this appeal lacks merit. The conviction is upheld and the sentence affirmed lawful. Accordingly, the appeal is dismissed in its entirety. The Appellant shall continue serving his sentence. Right of appeal 14 days. DATED, SIGNED AND DELIVERED AT NAKURU THIS 4TH DAY OF JUNE, 2026. PATRICIA GICHOHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7729/eng@2026-06-04 8

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In the presence of Dennis Kipkoech Ruto - Appellant Ms Anyumba for Respondent Erickson, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7729/eng@2026-06-04 9

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