REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO.E 001 OF 2026
JUSTINE MOENGA MOMANYI Alias OSOSI……………………………………………….APPELLANT
VERSUS
REPUBLIC…..................................................... RESPONDENT
(Being an appeal from the judgment, conviction and sentence of the Honourable I.K. Rono, Senior Resident Magistrate, delivered on 11 th December, 2025 in Ogembo CMSO E 043 of 2024).
JUDGMENT
The appellant was charged with the offence of defilement contrary to S. 8(1) as read with S. 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence stated that on 4 th May, 2024 at Igare sub-location, Igare Location in Sameta Sub-County within Kisii County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of W.N.O., a child aged 14 years. He also faced a second charge of committing an indecent act with a child contrary to S. 11(1) of the aforesaid Act. The particulars being that at the above stated place and time the appellant unlawfully touched the buttocks, breasts and vagina of above mention W.N.O. The appellant denied the charges, after a full trial, the appellant was convicted of the main charge of defilement and sentenced to serve a sentence of imprisonment for a period of thirty (30) years.
Being dissatisfied with both the conviction and sentence imposed by the learned trial magistrate, the appellant has appealed to this court. The appeal is contained in the appellant’s petition of appeal dated 5 th January, 2026 lodged with the court on 6 th January, 2026. The appellant is seeking orders to have his conviction quashed, the sentence of imprisonment set aside or reduced.
The grounds in support of the appeal are as summarized hereunder;
1. That the learned trial magistrate erred in law and fact by convicting the appellant based on contradictory and inconsistent evidence which falls short of the requisite standard of proof thus making the conviction unsafe, and
2. That the learned trial magistrate erred in law and fact by passing a sentence of imprisonment, which was excessive in the circumstances.
The appeal was admitted for hearing with directions that the parties file their respective submissions. In his written submissions dated 23 rd March, 2026, the appellant submits that he was convicted on the basis of evidence adduced by family members without any independent witnesses. The appellant submits that the complainant’s mother gave heresy evidence and that it was unlikely that the complainant examined in hospital because doctors were participating in industrial action.
The appellant faulted the prosecution for its failure to call independent witnesses who responded to an alarm raised when the appellant was allegedly found defiling the complainant. The appellant avers that there were contradictions in the testimonies of key prosecution witnesses. The appellant further avers that he was implicated in the commission of the offence and fixed due to family differences. The appellant faulted the prosecution for their failure to call members of community policing who arrested the appellant. The appellant submits that there were marked contradictions regarding the time when the alleged defilement occurred. The appellant submits that there was no evidence of penetration and that the investigating officer conducted shoddy investigations and failed to interview several potential witnesses.
Even though the respondent indicated that it filed submission dated 6 th March, 2026 on the same day, the case tracking system shows that no such submissions were uploaded. Instead, the system shows that there was an attempt by the respondent to file a document on the mentioned date, which cannot be found.
As a first appellate court, it is the duty of this court to re-evaluate the entire evidence afresh and draw its own conclusion, see the decision in Okeno v Republic (1972) EA32. To obtain a conviction, the prosecution is duty bound to proof its case beyond any reasonable doubt and that burden never shifts to the defence. This is a timeless principle in criminal trials; see Woolmington v DPP (1935) AC 462. An accused person, like the appellant in the present case, is presumed innocent, until the prosecution discharges its evidentiary burden aforesaid; see Article 50(2) (a) of the Constitution of Kenya, 2010
In the case of Duncan Odhiambo Onyango v Republic (2019) eKLR, it was held, “ the key ingredients for the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator.” The Court of Appeal in the case of Eliud Waweru Wambui v Republic (2019) eKLR also considered the issue of age in sexual offences and held,
“In this appeal, one of the appellant’s major complaints is that the age of the complainant was not proved to the required standard and that the document produced as her birth certificate could not be relied on to prove her age. There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt.”
Janet Kerubo who is the complainant’s mother narrated to the trial court how she learned about the complainant’s defilement by her uncle and the efforts she made to take her for medication. She gave her age at the time of her defilement as being 14 years. She told the court that her daughter was epileptic and that she was incoherent in her speeches. She identified her birth certificate, which shows that she was born on 3 rd June, 2009 (see exhibit 1). It is her evidence that the appellant is her brother-in-law.
Boniface Momanyi who is the complainant’s father gave evidence, which is similar in material particulars with that of his wife. He identified the appellant as his step-brother who defiled his daughter.
Daniel Bosire Otuke who is a brother to the complainant told the court that he found the appellant in the act defiling the complainant on 4 th May, 2024 at around 5:00 PM. The appellant is said to have undressed the complainant and that he was forcibly removed by the witness and thrown outside the house in which he was defiling the complainant. Bosire told the court that he raised an alarm but the appellant overpowered him and fled from the scene. Bosire was among people who searched for the appellant who was traced to his house where he had locked himself. The door had to be broken before the appellant was arrested and frog matched to the police station. It is the evidence of Bosire that the appellant was defiling the complainant on the floor of the kitchen.
Registered clinical officer Evans Mosota Nyaata examined the complainant at Gucha Level 4 Hospital on 8 th May, 2024, he told the court that the complainant was suffering from mental health. According to Mr. Nyaata, he noted redness and swellings on the complainant’s vaginal walls, a torn hymen, missing clitoris, a foul smelling vaginal discharge, traces of blood and several epithelial cells. He concluded that the complainant had been penetrated (see exhibits 2(a), (b) and (c)). The appellant did not challenge the testimony of the clinical officer. Frida Obao who is a psychiatrist testified that the complainant was suffering from mental instability and was incoherent in her communication. She concluded that she suffers from memory loss and poor judgment.
When placed on his defence, the appellant denied committing an act of defilement against the complainant as alleged. He told the court that the family of his stepbrother fixed him due to long-standing family differences. He told the court that the mother of the complainant had warned him of dire consequences when he prevented her from harvesting firewood. The trial court appreciated the above evidence in the well-reasoned judgment in which the appellant was convicted. It is farfetched to imagine that the appellant who was found red-handed defiling his epileptic niece was fixed or falsely accused due to implausible family differences. There was proof of penetration of the victim of defilement by the appellant coupled with proof of the age of the complainant. Indeed, the prosecution’s case was proved beyond any iota of doubt. There is no single misdirection on the part of the trial court on any factual or legal finding. The ground of appeal against conviction fails. I now turn to the appeal against sentence, the minimum sentence prescribed is a sentence of imprisonment for twenty (20) years. The trail court imposed a sentence of thirty years due to the aggravated nature of the offence. Medical evidence was adduced that showed that the complainant was epileptic and was prone to occasional fainting. Her vulnerability was well within the knowledge of the appellant who is her uncle. The trial court was right to prefer a deterrent sentence in expression of outrage at the despicable actions of the appellant. His appeal against sentence is equally unmeritorious.
In the circumstances, I do disallow the appeal in its entirety. The same stands dismissed and the trial court’s conviction and sentence upheld.
IT IS HEREBY ORDERED.
Judgment read, dated, signed and delivered virtually this 25 th day of June, 2026
HON. RICHARD K. KOECH
JUDGE
In the presence of :
- The Appellant virtually from Kisii GK Prison
- Mr. Koima appearing virtually for the Respondent
- M. Roselyne Court Assistant
Right of appeal within 14 days
. 7
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO.E 001 OF 2026
JUSTINE MOENGA MOMANYI Alias OSOSI……………………………………………….APPELLANT
VERSUS
REPUBLIC…..................................................... RESPONDENT
(Being an appeal from the judgment, conviction and sentence of the Honourable I.K. Rono, Senior Resident Magistrate, delivered on 11 th December, 2025 in Ogembo CMSO E 043 of 2024).
JUDGMENT
The appellant was charged with the offence of defilement contrary to S. 8(1) as read with S. 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence stated that on 4 th May, 2024 at Igare sub-location, Igare Location in Sameta Sub-County within Kisii County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of W.N.O., a child aged 14 years. He also faced a second charge of committing an indecent act with a child contrary to S. 11(1) of the aforesaid Act. The particulars being that at the above stated place and time the appellant unlawfully touched the buttocks, breasts and vagina of above mention W.N.O. The appellant denied the charges, after a full trial, the appellant was convicted of the main charge of defilement and sentenced to serve a sentence of imprisonment for a period of thirty (30) years.
Being dissatisfied with both the conviction and sentence imposed by the learned trial magistrate, the appellant has appealed to this court. The appeal is contained in the appellant’s petition of appeal dated 5 th January, 2026 lodged with the court on 6 th January, 2026. The appellant is seeking orders to have his conviction quashed, the sentence of imprisonment set aside or reduced.
The grounds in support of the appeal are as summarized hereunder;
1. That the learned trial magistrate erred in law and fact by convicting the appellant based on contradictory and inconsistent evidence which falls short of the requisite standard of proof thus making the conviction unsafe, and
2. That the learned trial magistrate erred in law and fact by passing a sentence of imprisonment, which was excessive in the circumstances.
The appeal was admitted for hearing with directions that the parties file their respective submissions. In his written submissions dated 23 rd March, 2026, the appellant submits that he was convicted on the basis of evidence adduced by family members without any independent witnesses. The appellant submits that the complainant’s mother gave heresy evidence and that it was unlikely that the complainant examined in hospital because doctors were participating in industrial action.
The appellant faulted the prosecution for its failure to call independent witnesses who responded to an alarm raised when the appellant was allegedly found defiling the complainant. The appellant avers that there were contradictions in the testimonies of key prosecution witnesses. The appellant further avers that he was implicated in the commission of the offence and fixed due to family differences. The appellant faulted the prosecution for their failure to call members of community policing who arrested the appellant. The appellant submits that there were marked contradictions regarding the time when the alleged defilement occurred. The appellant submits that there was no evidence of penetration and that the investigating officer conducted shoddy investigations and failed to interview several potential witnesses.
Even though the respondent indicated that it filed submission dated 6 th March, 2026 on the same day, the case tracking system shows that no such submissions were uploaded. Instead, the system shows that there was an attempt by the respondent to file a document on the mentioned date, which cannot be found.
As a first appellate court, it is the duty of this court to re-evaluate the entire evidence afresh and draw its own conclusion, see the decision in Okeno v Republic (1972) EA32. To obtain a conviction, the prosecution is duty bound to proof its case beyond any reasonable doubt and that burden never shifts to the defence. This is a timeless principle in criminal trials; see Woolmington v DPP (1935) AC 462. An accused person, like the appellant in the present case, is presumed innocent, until the prosecution discharges its evidentiary burden aforesaid; see Article 50(2) (a) of the Constitution of Kenya, 2010
In the case of Duncan Odhiambo Onyango v Republic (2019) eKLR, it was held, “ the key ingredients for the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator.” The Court of Appeal in the case of Eliud Waweru Wambui v Republic (2019) eKLR also considered the issue of age in sexual offences and held,
“In this appeal, one of the appellant’s major complaints is that the age of the complainant was not proved to the required standard and that the document produced as her birth certificate could not be relied on to prove her age. There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt.”
Janet Kerubo who is the complainant’s mother narrated to the trial court how she learned about the complainant’s defilement by her uncle and the efforts she made to take her for medication. She gave her age at the time of her defilement as being 14 years. She told the court that her daughter was epileptic and that she was incoherent in her speeches. She identified her birth certificate, which shows that she was born on 3 rd June, 2009 (see exhibit 1). It is her evidence that the appellant is her brother-in-law.
Boniface Momanyi who is the complainant’s father gave evidence, which is similar in material particulars with that of his wife. He identified the appellant as his step-brother who defiled his daughter.
Daniel Bosire Otuke who is a brother to the complainant told the court that he found the appellant in the act defiling the complainant on 4 th May, 2024 at around 5:00 PM. The appellant is said to have undressed the complainant and that he was forcibly removed by the witness and thrown outside the house in which he was defiling the complainant. Bosire told the court that he raised an alarm but the appellant overpowered him and fled from the scene. Bosire was among people who searched for the appellant who was traced to his house where he had locked himself. The door had to be broken before the appellant was arrested and frog matched to the police station. It is the evidence of Bosire that the appellant was defiling the complainant on the floor of the kitchen.
Registered clinical officer Evans Mosota Nyaata examined the complainant at Gucha Level 4 Hospital on 8 th May, 2024, he told the court that the complainant was suffering from mental health. According to Mr. Nyaata, he noted redness and swellings on the complainant’s vaginal walls, a torn hymen, missing clitoris, a foul smelling vaginal discharge, traces of blood and several epithelial cells. He concluded that the complainant had been penetrated (see exhibits 2(a), (b) and (c)). The appellant did not challenge the testimony of the clinical officer. Frida Obao who is a psychiatrist testified that the complainant was suffering from mental instability and was incoherent in her communication. She concluded that she suffers from memory loss and poor judgment.
When placed on his defence, the appellant denied committing an act of defilement against the complainant as alleged. He told the court that the family of his stepbrother fixed him due to long-standing family differences. He told the court that the mother of the complainant had warned him of dire consequences when he prevented her from harvesting firewood. The trial court appreciated the above evidence in the well-reasoned judgment in which the appellant was convicted. It is farfetched to imagine that the appellant who was found red-handed defiling his epileptic niece was fixed or falsely accused due to implausible family differences. There was proof of penetration of the victim of defilement by the appellant coupled with proof of the age of the complainant. Indeed, the prosecution’s case was proved beyond any iota of doubt. There is no single misdirection on the part of the trial court on any factual or legal finding. The ground of appeal against conviction fails. I now turn to the appeal against sentence, the minimum sentence prescribed is a sentence of imprisonment for twenty (20) years. The trail court imposed a sentence of thirty years due to the aggravated nature of the offence. Medical evidence was adduced that showed that the complainant was epileptic and was prone to occasional fainting. Her vulnerability was well within the knowledge of the appellant who is her uncle. The trial court was right to prefer a deterrent sentence in expression of outrage at the despicable actions of the appellant. His appeal against sentence is equally unmeritorious.
In the circumstances, I do disallow the appeal in its entirety. The same stands dismissed and the trial court’s conviction and sentence upheld.
IT IS HEREBY ORDERED.
Judgment read, dated, signed and delivered virtually this 25 th day of June, 2026
HON. RICHARD K. KOECH
JUDGE
In the presence of :
- The Appellant virtually from Kisii GK Prison
- Mr. Koima appearing virtually for the Respondent
- M. Roselyne Court Assistant
Right of appeal within 14 days
. 7