Karuu v Republic (Criminal Appeal 148 of 2018) [2026] KECA 71 (KLR) (30 January 2026) (Judgment)

Karuu v Republic (Criminal Appeal 148 of 2018) [2026] KECA 71 (KLR) (30 January 2026) (Judgment) Neutral citation: [2026] KECA 71 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 148 of 2018 W Karanja, S ole Kantai & A Ali-Aroni, JJA January 30, 2026 Between Ephantus Wachira Karuu Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court at Kerugoya (Gitari, J.) delivered on 8th November, 2018) Judgment 1.This is a second appeal from the original conviction and sentence by the Magistrate’s Court at Kerugoya where the appellant was convicted for the offence of defilement contrary to section 8(1) as read with section 8(2) of the [Sexual Offences Act](/akn/ke/act/2006/3). He was sentenced to imprisonment for life and his appeal to the High Court of Kenya at Kerugoya was dismissed by Gitari, J. in a judgment delivered on 8th November 2018. We reiterate the holding of this Court on our mandate on second appeal in the case of Michael Ang’ara Paul vs. Republic [2021] eKLR where the Court stated:“Being a second appeal our jurisdiction is limited by Section 361(1) (a) Criminal Procedure Code where we are to consider only issues of law if any are raised in the appeal but must not go into a consideration of facts which have been tried by the trial court and re-evaluated on first appeal unless we reach the conclusion that the findings were not backed by evidence or are based on a misapprehension of the evidence or it is shown that the two courts demonstrably acted on wrong principles in making those findings or the conclusions are perverse – Chemagong v Republic [1984] KLR 611.” 2.We shall visit the facts of the case briefly to establish whether the two courts below carried out their mandate as required in law. 3.The appellant was charged in Kerugoya Magistrates Court in Sexual Offence Case Number 10 of 2015 with the offence of defilement contrary to section 8(1) as read with section 8(2) of the [Sexual Offences Act](/akn/ke/act/2006/3). The particulars were that on 5th June, 2015, he defiled AWM, a girl aged 6 years. He faced an alternative charge of committing an indecent act with a child. 4.The child AWM (PW1) testified that the appellant is a neighbour who lives very close to them. He called her to his house on the material day while she was playing with her friends, put her on his bed, removed her clothes and applied oil on her vagina. He also removed his clothes and put his penis in her vagina. He told her that if she told anyone about what happened, she would be beaten. She, nonetheless, told her grandmother (BMK-PW2), who told her grandfather. She was taken to hospital and the police were also informed. 5.BMK, the grandmother and guardian to AWM noted that on 5th June 2015, the child came home at around 3 p.m. and appeared to be having difficulty walking. The child narrated to her grandmother what had transpired. BMK examined the child and found her wet. They alerted the appellant’s wife, who became very hostile and violent towards them. BMK stated that she did not have a good relationship with the appellant but denied fabricating the incident. 6.The clinical officer, Stephen Peter Kilonzo, (PW3) examined the child on 13th July, 2015. He noted that her hymen was broken, there were no bruises or tears but there was a white discharge with a foul smell. He opined that the broken hymen established penetration and possibly repetitive penetration. 7.PC Georgina Syokau, (PW4) the Investigating Officer received the complaint on 9th July, 2015 and issued a P3 Form as well as summons for the arrest of the appellant. She established that the child was born on 23rd May, 2009 and was six years old at the time of the offence. The child identified the appellant as her aggressor and the police officer prepared the charges against him. 8.Upon being put on his defence, the appellant gave a sworn statement where he told the court that he had a grudge against BMK who had fabricated the case. He stated that BMK’s children had refused to go to school and that BMK was jealous and did not want his children to go to school either. He said that he is married and cannot commit such an offence. In cross-examination, he stated that he was at his home on the material day but never saw the girl. 9.The appellant called his mother as his witness who told the court: “…I came to learn that he committed the offence when he was arrested…” She was at home and was surprised to see police officers arrive and arrest her son. She could not understand why her son was arrested but she knew that the child’s mother was “bad news.” The appellant also called his father John Karuu as his witness, and the father insisted that the matter was fabricated by BMK who was jealous of the appellant’s achievements. 10.After considering the evidence from both sides, the trial court convicted the appellant and sentenced him to life imprisonment. 11.Being dissatisfied with the trial court’s judgment, the appellant filed his first appeal at the High Court, Kerugoya where his grounds of appeal largely were that the prosecution evidence had been uncorroborated, that the trial court had failed to consider the existing grudge between him and the child’s mother and that his defence was rejected without cogent reasons. He also faulted the court as having failed to have conducted voire dire examination, that there was no medical evidence to support the charge, that the conviction was against the weight of evidence and that burden of proof was shifted to him. 12.The respondent herein opposed the appeal terming the appeal as unmerited. He stated that the prosecution’s case was proved; and they asked the court to dismiss the appeal entirely. 13.The court delivered judgment on 8th November, 2018 and found the appeal to be unmerited. The appeal was dismissed entirely, terming the finding of the trial court as proper and inevitable. 14.As per the appellant’s submissions dated 24th April, 2025 in the second appeal, the grounds of appeal are that the trial was unfair as PW3 (the clinical officer) and PW4 (the police officer) testified in English instead of Kikuyu language; that the ingredients of the offence were not proved to the required standard; that the court erred in law in not finding that there was a grudge between the appellant and BMK’s family. He lastly, as a ground of appeal, states that the sentence was harsh and excessive. 15.The respondent has filed written submissions dated 11th April, 2024 opposing the appeal. They submit that the appeal is unmerited and ought to be dismissed. The respondent also terms the conviction as safe and the sentence was neither harsh nor excessive considering the age of the victim. 16.This appeal was heard on 2nd July, 2025 on the Court’s virtual platform. The appellant was present in person while learned counsel Mr. Naulikha appeared for the respondent. Both parties had filed their written submissions and opted to rely on them entirely.We have considered the record of appeal as well as the submissions filed for the parties and the law. 17.Firstly, the appellant states that the trial was unfair as the clinical officer and the police officer testified in English instead of the Kikuyu language which he understands. The record reflects that the appellant never raised an issue of interpretation of language for these two witnesses and proceeded to cross-examine both of them. He understood and participated in the proceedings to the fullest.3.We find in any event that the language of the trial is a matter of fact which we are not mandated to consider in a second appeal. We therefore find this ground of appeal baseless and dismiss the same. 18.Secondly, the appellant contends that the ingredients of the offence were not proved. The elements for the offence of defilement as provided for in the statute are identification of the aggressor, proof of age of the victim and penetration. 19.Regarding the issue of identification, AWM and her grandmother, BMK, confirmed that the victim, AWM, knew the appellant who was their neighbour. Additionally, the offence took place during the day and AWM would have adequately recognized her aggressor. He took her by the hand when she played with her friends in the compound, took her to his house and proceeded to defile her after undressing her. This must have taken some time. He talked to her warning her of severe consequences if she reported the incident to her grandmother. She knew him very well and the identification was by recognition of a person she knew, her neighbour. This Court in the case of Bichanga & 3 Others vs. Republic KECA 1365 (KLR) stated that:It is trite that identification by recognition is more reliable than the identification of a stranger.” 20.There is also the evidence by the appellant’s mother which confirmed that AWM was playing with other children in their compound on the material day and the appellant was at home. We therefore find that the appellant was well identified. 21.We now consider whether penetration was proved. The child clearly told the court that the appellant applied oil on her vagina and inserted his penis into her vagina. This testimony by AWM was supported by the evidence of the clinical officer who confirmed that the child’s broken hymen established penetration. We agree with the finding of the trial court and the High Court that there was sufficient evidence of penetration. 22.The appellant has not challenged the age of the complainant and the record bears a notification of birth which indicates that AWM was born on 23rd May, 2009 therefore she was 6 years old at the time of the offence. 23.We find that the elements of the offence of defilement were proved beyond reasonable doubt. 24.The appellant faults the trial court and the High Court for failing to consider his defence of a grudge between him and AWM’s family. We have considered the defence by the appellant and his witnesses. We agree with the trial court’s opinion that the defence was an after-thought as the issue of AWM’s mother’s jealousy of the appellant’s family was not raised during the cross-examination of the witnesses. Additionally, the appellant did not say what was the genesis of the alleged dispute and in what way the complainant’s family would benefit by framing the appellant with a defilement charge. They also did not give any particulars as to what AWM’s mother had done to instigate any issues in the community or against the appellant’s family. We therefore find that the defence was rightly rejected. 25.Lastly, on the issue of sentence, the offence under section 8(1) as read with section 8(2) of the [Sexual Offences Act](/akn/ke/act/2006/3) provides that: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.” 26.In line with the above, the sentence imposed by the trial court and upheld by the High Court was the mandatory sentence for the offence, which we have no reason to interfere with. 27.In conclusion, we hereby uphold the conviction by the trial court and affirm the decision of the High Court. This appeal is dismissed in its entirety. **DATED AND DELIVERED AT NYERI THIS 30 TH DAY OF JANUARY, 2026.****W. KARANJA****…………………….……….****JUDGE OF APPEAL****S. OLE KANTAI****………….………………….****JUDGE OF APPEAL ALI- ARONI****……………….…………….****JUDGE OF APPEAL** I certify that this is a True copy of the originalSigned**DEPUTY REGISTRAR**