The Court of Appeal has dismissed an appeal by David Kimani Gitire, affirming his life sentence for defiling a six-year-old child.
In a unanimous judgment delivered on June 20, 2025, Justices Patrick Kiage, Weldon Korir, and Joel Ngugi found that all elements of the offence were proven beyond reasonable doubt.
Gitire had been convicted of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act.
He was accused of defiling a boy codenamed BKN, between July 11 and August 2, 2010, in Kajiado North.
Defence grounds rejected
In his second appeal, Gitire claimed the High Court judge erred by not considering his amended grounds of appeal, overlooking gaps in prosecution evidence, and failing to account for his defence.
He argued that the prosecution failed to prove penetration, saying there was “no organ-to-organ penetration.”
Instead, he submitted that the facts leaned towards the alternative charge of committing an indecent act, which carries a ten-year sentence.
Gitire also questioned the identification process, claiming the court wrongly concluded that “Kim the shoeshiner” was him, without sufficient evidence.
However, the Court of Appeal ruled that the trial court and High Court had properly evaluated the evidence.
“We therefore find no difficulty in finding that penetration was proved to the required standard,” the judges stated.
Medical evidence corroborated testimony
The case was built around testimony from the child, his mother and grandmother.
The boy told the court the appellant took him to a toilet and defiled him.
Medical evidence supported this claim.
A doctor testified that the boy had a tear at the anal opening.
Another doctor confirmed similar findings from Nairobi Women’s Hospital.
These observations corroborated the child’s account.
The court noted, “Treatment notes from Nairobi Women’s Hospital established that the complainant had a tear at 12 o’clock and 6 o’clock, and they concluded that he had been sodomised.”
Identification was clear
The three judges also ruled that identification was not in doubt.
Witnesses knew the appellant as “Kim,” a shoeshiner working near their kiosk for over eight months.
During the trial, Gitire never denied being “Kim” or working as a shoeshiner.
“In cross-examining PW2 and PW3, the appellant was concerned with how long he had been a shoeshiner near the kiosk and not whether he was indeed the ‘Kim the shoeshiner,’” the judgment noted.
Alibi and grudge claims dismissed
Gitire alleged that he was framed due to a grudge and claimed to have been on a political campaign during the time of the offence.
But the judges found these claims unconvincing.
“The offence occurred between July 11, 2010 and August 2, 2010, and there is no evidence that the appellant was engaged in campaigns during all that time,” they stated.
He also failed to cross-examine witnesses on this defence.
Sentence cannot be changed
Gitire pleaded for a reduced or non-custodial sentence, citing time spent in custody and rehabilitation efforts.
However, the court ruled that the life sentence imposed under section 8(2) of the Sexual Offences Act was mandatory.
“From the foregoing, dismissal is the fate befalling the appellant’s appeal. Consequently, we find the appeal lacks merit and dismiss it in its entirety,” the judges ruled.
