(Criminal Case E015 of 2024) [2026] KEHC 1001 (KLR) (5 February 2026) (Judgment)

(Criminal Case E015 of 2024) [2026] KEHC 1001 (KLR) (5 February 2026) (Judgment) Neutral citation: [2026] KEHC 1001 (KLR) Republic of Kenya In the High Court at Naivasha Criminal Case E015 of 2024 GL Nzioka, J February 5, 2026 Judgment 1.The accused was arraigned before the Chief Magistrate Court, charged 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) No. 3 of 2016, (herein “the Act”). 2.The particulars of the charge are that on the 7th day of May 2018, at Kenya Cooperative Creamery Estate in Naivasha Sub-County within Nakuru County, intentionally and unlawfully did cause his genital organs, namely penis, to penetrate the genital organs, namely vagina of F.N.W, a girl aged 6 years. 3.The appellant was charged with an alternative charge of indecent act with a child, contrary to Section 11(1) of the Act. The particulars of that alternative charge are that, on the 7th day of May 2018, at Kenya Cooperative Creamery Estate in Naivasha Sub-County within Nakuru County, intentionally and unlawfully did cause his genital organs, namely penis, to come in contact with the genital organs, namely vagina of F.N.W, a girl aged 6 years old. 4.The charges were read to the appellant and he pleaded not guilty to both whereupon the case proceeded to full hearing. The prosecution case was supported by evidence of six (6) witnesses. The main evidence being led by (PW1) the complainant. 5.The complainant stated that on the material date she was playing with other children when the appellant called her and led her to a tailoring shop within a daycare compound. That he removed his trousers and her pant and told her to part her legs. That he then did “bad manners” to her using his “thing” for urinating. 6.That after defiling her, he released her and warned her not to tell anyone or her father or he would beat her. However, when the complainant reached home she told the mother what had transpired. 7.(PW2) Esther Wandia the complainant’s mother testified that upon learning of the incident, she called her sister (PW3) Mary Wangui Ndungu and when they examined the complainant’s private parts, they noticed that it was stretched wide and reddish. The matter was reported to the police station and the complainant issued with a P3 form. 8.The complainant was then examined by (PW6) Dr David Mukuhe Gacheru who confirmed that she had been involved in attempted defilement and that there was tenderness around her vagina and hymen was injured at 11’Oclock and 1’ Oclock. Similar findings were made by (PW4) Emily Muthoni Kiragu who filled the Post Rape Care form. 9.(PW5) No. 61396 Corporal Albert Otuke, who investigated the case concluded after recording the witness statement that the appellant committed the offence and charged him accordingly. 10.At the close of the prosecution case the appellant was placed on his defence, he denied committing the offence and testified in a nutshell that he is being framed due to the land dispute he had with (PW3) Mary Wangui over double allocation. 11.He faulted the investigating officer for conducting shoddy investigation and the prosecution for failure call key witnesses and/or adduce adequate evidence to support its case 12.At the conclusion of the trial, the court rendered its decision, dated 4th June 2024, found the appellant guilty of the charge of defilement and sentenced him to serve life imprisonment. 13.However, the appellant in aggrieved and filed the appeal herein based on undated grounds of appeal verbatively reproduced as follows:a.That the learned trial Magistrate erred both in law and fact, when he failed to observe that the prosecution did not prove the case to the required standard needed in law.b.That the learned trial Magistrate erred both in law and fact, in finding that the evidence of the victim was credible, which was not supported by the evidence.c.That the learned trial Magistrate erred both in law and fact, in failing to give reasons as to why she believed the victim's evidence hence contravening Section 124 of the [Evidence Act](/akn/ke/act/1963/46), cap 80, Laws of Kenya.d.That the learned trial Magistrate erred both in law and fact, fact by relying on extrinsic evidence that was not adduced during trial, that no evidence was adduced to show that the male organ was used to penetrate the victim's genitalia.e.That the learned trial Magistrate erred both in law and fact, in convicting him on the flimsy and frivolous allegations that thrived on a grudge.f.That the learned trial Magistrate erred both in law and fact, by failing to take into account his defense.g.That the learned trial Magistrate sentenced him to serve harsh indeterminate sentence which is inhuman and unconstitutional.h.That further grounds shall be adduced at the hearing of the appeal.i.That he wishes to be present during the hearing and termination of the appeal. 14.However, the appellant filed amended ground of appeal which states as follows:a.That the trial Magistrate erred in law and fact by imposing the life imprisonment but failed to note that the appellant was a first offender and that the court could have awarded a definite sentence in consideration of provisions of section 216 and 329 of the Criminal Procedure Code and Article 50(1) (p) (2) of [the Constitution](/akn/ke/act/2010/constitution) and the Policy Sentencing Guidelines 2016.b.That the trial Magistrate erred in law by convicting the appellant in prosecution case that was faulty but failed to note from the appellant's defence that there was existing grudge between the appellant and PW3 Mary Wangoi fighting over land thus this brought about doubt on the credibility of the evidence of PW3.c.That the trial Magistrate erred in law by failing to note that the charge of defilement was not proved against the appellant yet he concluded and awarded a conviction and sentence of life imprisonment.d.That the trial Magistrate erred in law and in fact by failing to acknowledge that the investigations was shoddy and not good in law.e.That the trial Magistrate erred in law land facts by not considering the fatal contradictions that could warrant an acquittal. 15.In response the prosecution filed grounds of opposition in which it is argued that:a.The prosecution proved its case beyond reasonable doubt.b.The evidence of the child was credible and left no gapsc.The learned Magistrate clearly outlined the reasons for believing the testimony of the minors provided for in lawd.The evidence provided was sufficient and reliable.e.The evidence was strong and collaborativef.The defence presented by the appellant was full of denials and not concrete to overturn the evidence of the prosecutiong.The sentence is provided for in the law as enshrined in the Sexual Offenses Act 2006.h.The superior court should uphold the conviction and the sentence of the accused person. 16.The appeal was disposed of vide filing of submissions. The appellant reiterated that he was not accorded a fair trial as stated under article 50 (p) (2) of [the Constitution](/akn/ke/act/2010/constitution) of Kenya. Further his mitigation was not considered thus flouting section 216 and 229 of the Criminal Procedure Code. 17.That in addition, the factors of sentencing under the Sentencing Policy Guidelines which include; deterrence, rehabilitation, retribution, protection of the society, one’s accountability for their action and conductor of the offender were not considered before sentencing him to life imprisonment, the case of; Sammy Wanderi Kugotha vs Republic (2921) eKLR was relied on. 18.The appellant submitted that, the investigating officer failed to produce defence exhibit 2 and relied on hearsay evidence of PW1, 2 and 3. Moreover, he did not take blood samples, and the blood sample taken did not prove defilement as stated by PW6. The appellant relied on the case of; Samson Tela Akute vs Republic (2006) eKLR to argue that the evidence of an expert is a mere opinion. 19.That not all witnesses were availed which led to miscarriage of justice. Further, the evidence of PW1, 2 and 3 did not concussively prove the elements of defilement. Furthermore, the allegation by the complainant that he did to her “tabia mbaya” should be treated with caution as those words do not always refer to defilement and can be interpreted to mean any other unbecoming conduct. 20.That he complainant’s age was not positively proved and the allegation that she was subjected to forceful sexual penetration was not supported as there was no blood noted in her private parts. Finally, the appellant argued that as investigating officer stated is a traffic officer, he could not investigate the criminal case properly. 21.However, the respondent submitted in responds that, the prosecution proved all the ingredients of the offence before the court. That the age of the complainant was proved to be six (6) years old through the production of her birth certificate (P.Exh 2), produced by the Investigating Officer. 22.Further, penetration was proved through the the medical evidence being the P3 form (P.Exh 1) and the Post Rape Care Form (P.Exh 3) which noted the complainant had physical injuries on her body and hymen, and vaginal examination revealed the presence of pus cells and red blood cells. Furthermore, (PW2) Esther noted that the complainant had difficulty walking and on examining the complainant’s genitals she noted the complainant had been defiled. 23.That, the appellant was well known to the complainant who was able to identify him as Baba Philipo, while (PW2) Esther stated that she knew the appellant for close to five (5) years. 24.The respondent argued that the appellant’s defence was full of lies and did not displace the prosecution’s case. That despite the appellant mentioning that he had disagreed over a parcel of land with one Mary Wangui, she was never called as a witness nor did the appellant lead any evidence to show a nexus between the dispute and the present case. 25.At the conclusion of the arguments by the parties and in considering the material placed before the court, I note that the role of the 1st appellate court as held by the Court of Appeal in the case of; Okeno vs. Republic (1972) EA 32, is to re-evaluate the evidence adduced in the trial court afresh and arrive at its own conclusion, noting that this court did not benefit from the demeanour of the witnesses. 26.In evaluating the evidence herein I find that, the appellant was convicted of the offence of defilement. The elements of the offence were settled in the case of; Agaya Roberts vs. Uganda, Criminal no. 18 of 2002, and Bassita Hussein vs. Uganda Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda where court stated that, in order to constitute the offence of defilement the following must be proved: (i) the facts of the sexual intercourse (ii) the age of the victim being under 18 years (iii) participation by the accused in the alleged sexual intercourse. 27.As regards age, I note that, a birth certificate was produced which indicates that the complainant was born on 26th April 2012, and the offence herein committed on 7th May 2018 therefore she was aged 5 years and 11 months at the time of the offence. The charge sheets read that she was 6 years old at the date the incident. 28.The importance of proving the age of a complainant in defilement charge is two-fold; to establish whether the child is a minor and the appropriate sentence as provided for under section 8(2) of the Act. 29.A child is defined under section 2 of the [Children Act](/akn/ke/act/2001/8) (No. 29 of 2022) Laws of Kenya as an individual who has not attained the age of eighteen years. In that regard the complainant herein having been below 18 years is clearly a minor. Further the sentence under section 8(2) covers age bracket of 11 years or less. Consequently, the age of the complainant being 6 years falls under section 8(2). Consequently, the element of age was well proved and any arguments to the contrary is neither here nor there. 30.As regards penetration, section 2 of the Act states that; “penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person”. The evidence of the complainant is that, the appellant told her to part her legs and did to her “tabia mbaya”. That he touched her with his part for urinating, referred to as “dudu”. 31.In addition, both PW2 and PW3, the complainant’s mother and aunt respectively testified that they checked the complainant’s private parts and noted; it was very red. PW4 and PW6 who filed the PRC and P3 forms respectively were in concurrence that, the complainant had tenderness around the vagina, and that the hymn was injured at 11 o’clock and 1 o’clock. Furthermore, there was hyperemic in the vaginal area and a bruise at the annual area. 32.The afore evidence has not been challenged by any contrary evidence by the defence and the submissions that an expert evidence is a mere opinion has no merit as the evidence of the complainant is corroborated by the evidence of PW2, 3, 4 and 6. 33.It suffices to note that the complainant was taken for a medical examination within hours of the occurrence of the offence and before she had taken a bath and therefore the evidence was raw and reliable. As such the finding of (PW6) the doctor that the history given by the complainant is consistent with the finding of defilement, the element of penetration was proved 34.The final issue to consider is whether the appellant committed the offence. Upon considering the evidence adduced in total, it is not in dispute that the offence herein occurred during the day. Hence high chances of identifying the perpetrator. Further, the complainant, and her parents were staying in the same place with the appellant. 35.The complainant stated in her evidence in chief that she knows the accused as Baba Philipo and that he lives near them. PW2 complainant’s mother stated; “I have known Baba Philipo for a long time, even more than 5 years”. PW3 the complainant’s aunt testified in cross examination that she has known the appellant for over 20 years as they live in the same area. 36.Further the appellant corroborated the afore evidence by confirming that he was living in the same place at KCC where the complaint lived and where the offence was committed. 37.Furthermore, the complainant stated that the offence was committed in a tailoring shop within a daycare premises. That at that time the owner of the shop was not there. In his defence the appellant confirmed that he was working at a baby care as a night guard and that children would go back home in the evening. 38.Based on the subject evidence it is very clear that the appellant was well known to the complainant and was at the scene of crime on the particular date. 39.However, he denies committing the offence and alleges grudge between him and PW3, which defence was dismissed by the trial court. To resolve the issue several question must be asked, and addressed. First, did he have a grudge with PW1 and PW2, his answer to this question in cross examination was in the negative, so why would these witnesses plant the charges on him. In fact, in cross examination PW2 categorically denied framing the appellant and maintained that there was no grudge between them. 40.Secondly, if indeed he had a land dispute with PW3 why didn’t the defence cross examine her on the same. The court notes that no such issue was raised by the defence while cross examining PW3. Isn’t it therefore an afterthought. 41.Be that as it were, having established that, PW1 was defiled, if the appellant did not do it, who did it? Furthermore, unrebutted is that the appellant disappeared after the incident and arrested much later, so why did he run away. In addition, PW2 stated that at the time of the incident the appellant was not staying with his wife, thus creating a high possibility of committing the offence. 42.Finally, throughout the evidence adduced by the prosecution witnesses each one stated that (PW1) the complainant maintained and consistently stated she was defiled by the appellant at the tailoring shop. 43.It is the finding of this court that the appellant has been positively identified as the perpetrator of the offence and that he defiled the complainant 44.However, before the judgment is concluded, the court will address some of the issues raised in submissions which include failure to call key witnesses. PW1 stated that she playing with other children when she was lured away. However, these children did not witness the defilement and the investigating officer stated that they were too young aged 3 and 4 years to have given any useful evidence. 45.As regard a witness by the name Baba Mathuku whom PW1 stated rescued her, it is the finding of this court that he should have been called to testify but even then, in the absence of his evidence, there is still adequate evidence as analysed herein to make a positive finding that the offence was committed and by the appellant. 46.The other argument that investigation was done by a traffic police officer and was shoddy falls by the way based on the finding of this court that sufficient evidence was adduced to support the charge. 47.Finally, the issue of the life imprisonment being unconstitutional, does not arise, the issue can only be addressed in a constitutional petition. As regard this matter, the provisions of section 8(2) of the Act states that;“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”. 48.In dealing with these provisions, the Supreme Court of Kenya in Petition No. E002 of 2024 Republic vs Evans Nyamari Ayako stated inter alia as follows”“(47)[47] In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and power.” 49.Pursuant to the afore decision, the sentence imposed by the trial court is proper, regular and lawful. 50.The upshot is that the appeal herein is found devoid of merit and is dismissed in its entirety. Right of appeal within 14 days is explained. **DATED, DELIVERED AND SIGNED ON THIS 5 TH DAY OF FEBRUARY 2026****GRACE L. NZIOKA****JUDGE** In the presence of:Appellant in personMs Chepkonga for the RespondentHannah Court Assistant