Simon Wanderi Mwangi v Republic

3. PW2, a Clinical Officer, examined the appellant and filled the P3 Form. It was his evidence that he did not notice any abnormality on his penis. PW3, the Area Chief went to the scene after he received a call from a village elder who reported the incident to him. He found PW1, her mother and villagers. PW1 narrated to him her ordeal. PW3 arrested the appellant and took him to the police. PW4, an Administration Police Officer, stated that the complainant took them to the appellant’s house. 4. PW5, the complainant’s mother, recounted how she had gone to buy new stock for her business. Upon her return the village elder reported to her what had transpired. She examined PW1's genitals and noted they were swollen and presence of a whitish substance. 5. The village elder, Margaret Ndungu (PW6), stated that Susan, her neighbour had alerted her that the complainant’s gait was raising suspicion. She called the girl, who disclosed to her the accused or 'Njera Wega' as he was commonly known, had defiled her. She also noted swelling on the girl's private parts. She called the Area Chief (PW3) who together with his officers who included PW4 arrested the appellant. The complainant was taken to hospital. She was examined by PW8 whose evidence that PW1 could not sit properly, instead she sat on her side. On examination he found that her hymen was intact, but PW1 had pain on her genitalia. He opined that there was an attempted penetration. 6. In his defence, the appellant stated that on 16th June 2013, he repaired a cooker for a customer who paid him handsomely. The next day, one Mama Michael went to his home and the two spent the night together. In the morning, Mama Njeri came and confronted him since he had also been having an affair with her. She demanded cash from him. He gave her some but she wanted more. He complied and added her Ksh.500/= and she left. He went to his place of work. Later he learnt that the two women were fighting over him. He went and separated them. It was then that Mama Njeri vowed to teach him a lesson that he would not forget. For unknown reasons, he was arrested. The chief took his Ksh.43,000/ = which has not been returned. He denied the charges. 7. After analyzing the totality of the evidence, the learned Magistrate was persuaded that the prosecution had proved its case to the required standard, convicted the appellant and sentenced him to serve life imprisonment. 8. Dissatisfied by this finding, the appellant appealed to the Nakuru High Court in CR Case No. 220 of 2014 faulting the learned Magistrate for: (a) relying on the evidence of PWl which was marred by discrepancies; (b) failing to note that this was a framed-up case arising from a domestic instigated grudge that existed between himself and PW2 and a domestic quarrel between himself and his wife. 9. Before the High Court the appellant filed supplementary grounds of appeal urging that the trial Magistrate: (a) failed to appreciate that the age of the complainant was not proved beyond any reasonable doubts; (b) failed to appreciate that penetration was not proved; (c) failed to consider his defence and, (e) failed to appreciate that the liquid discharge was not proved to be his. 10. In the impugned judgment dated 2nd June 2017, Odero, J. was satisfied that the offence of defilement was proved to the required standard and upheld both the conviction and sentence and dismissed the appeal in its entirety. 11. The appellant is now before this Court seeking to overturn the said decision citing contending that the learned Judge: (a) erred in law in dismissing his appeal yet the charge sheet was fatally defective; (b) erred in law by accepting hearsay evidence hence misinterpreting PW1’s demeanor as an indicator of penetration without forensic proof; (c) erred by failing to note that the prosecution had not proved the offence of defilement beyond any reasonable doubt; (d) upholding the lower Court’s finding without comprehensively evaluating the evidence on record; (e) failing to note that the prosecution evidence was marred with discrepancies. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/619/eng@2026-03-25 2

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12. In his amended grounds of appeal filed together with his submissions, the appellant contends that: (a) the prosecution did not establish a prima facie case against him; (b) the High Court did not evaluate the entire evidence; (c) penetration was not proved; (d) the charge sheet was fatally defective; (e) the medical evidence did not establish the offence; (f) his defence and mitigation were not considered and (g) the sentence imposed is unfair, unlawful and unconstitutional. 13. We heard this appeal virtually on 9th February 2026. The appellant appeared in person while the respondent was represented by Mr. Omutelema, Senior Assistant Director of Public Prosecutions. 14. In his submissions, the appellant maintained that the ingredients of the offence were not proved. He cited Cordon vs. UK (2000) Crim. LR 679 where the European Court of Human Rights stressed that in determining whether a conviction is unsafe, the courts should focus on the fairness of the trial rather than the safety of the conviction. He also cited Lrd Woolf’s statement in R vs. Togher [2001] that if an accused is denied a fair trial, inevitably, the conviction is regarded as unsafe. He urged this Court to acquit him or vary the sentence to 10 years imprisonment since there are no aggravating circumstances. He relied on the Court of Appeal decision in Simon Kibisu Makanga vs. Republic [2023] eKLR in which the Court of Appeal reduced a sentence under the Sexual Offences Act on grounds that there were no aggravating circumstances. 15. Further, the appellant argued that Section 124 of the evidence Act was misapplied because it only applies if the complainant is the sole witness. He also argued that the doctor opined that this was a case of attempted defilement, meaning, there was no defilement at all, therefore, he is entitled to a lesser sentence. He also urged this Court to consider the 2 years he was in custody. 16. The respondent’s counsel Mr. Omutelema opposed the appeal, maintaining that the ingredients of the offence were proved to the required standard. He argued that the complainant’s evidence was properly received, that it was sufficiently corroborated and that the prosecution witnesses were credible. He also submitted that the charge sheet was not defective and urged this Court to uphold the conviction and sentence. 17. This is a second appeal, therefore, our jurisdiction is limited to considering matters of law as stipulated by Section 361 of the Criminal Procedure Code. A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at its findings. (See David Njoroge Macharia vs. Republic [2011] eKLR). 18. We will first address the issue whether penetration, one of the key ingredients of the offence, was proved to the required standard. The trial court and the first Appellate Court found that the evidence established that the complainant was defiled. PW1 stated that the appellant put her in his bed, removed her clothes and unzipped his trouser and slept on her and a liquid came from his genital. Her evidence was collaborated with her mother who testified that the complainant’s genitals were swollen and she noted a whitish discharge. The village elder, Margaret Ndungu (PW6) also collaborated the complainant’s evidence. She stated that PW1 was walking with a gait and upon asking her, she told her the appellant who was called “Njera wega” did “tabia mbaya” to her. She also noted swelling on PW1’s private parts. PW8, the doctor who examined the complainant also collaborated PW1’s evidence. It was his evidence that her hymen was intact but the vagina was swollen and painful suggesting attempted defilement. 19. Buoyed by the medical evidence that the complainant’s hymen was intact, the appellant maintained that penetration was not proved. The definition of penetration in sexual offences is governed by Section https://new.kenyalaw.org/akn/ke/judgment/keca/2026/619/eng@2026-03-25 3

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2(1) of the Sexual Offences Act, which explicitly defines it as "the partial or complete insertion of the genital organs of a person into the genital organs of another person." Our courts have consistently held that "partial" or "slightest" penetration is sufficient to constitute rape, defilement or sexual assault and that the hymen need not be ruptured nor the sexual act fully completed. The Court of Appeal in Mark Oiruri Mose vs. R [2013] eKLR established that "partial" or "surface" penetration is sufficient for conviction, as full completion of the act is not required. In Erick Onyango Ondeng vs. Republic [2014] eKLR, this Court confirmed that the "slightest" penetration satisfies the legal requirement, regardless of whether or not the hymen is ruptured. Upon evaluating the evidence, we find no reason to doubt the concurrent findings by the two courts below on the issue of penetration. In our view, penetration was proved to the required standard. 20. The next question is whether the appellant was identified properly as the offender. It is an established position that identification of an assailant who is known to the victim is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant. There is a clear distinction between recognition (knowing the person) and identification (identifying a stranger). PW1 was clear that the appellant was a neigbhour, and that she knew him. She stated that the appellant used to repair sufurias. She was clear that she was sent by her mother to take a sufuria for repair by the appellant. This detailed evidence was not disputed. We have weighed this evidence against the appellant’s defence as highlighted earlier. We are persuaded that his defence did not shake the complainant’s account. He did not deny he used to repair sufurias. He did not dispute that he was a neighbour and the complainant knew her. In fact, she stated that this was not the first time. We find no reason to fault the trial court’s and the first Apellate Court’s findings on identification. We are satisfied that the evidence of identification was free from error. 21. The third ingredient in an offence of this nature is whether the complainant’s age was proved to the required standard. There are many decisions by our Superior Courts underscoring that proving the victim's age is a critical ingredient of any charge under the Sexual Offences Act because the specific age of the victim determines the statutory minimum sentence to be imposed in the event of a conviction. This makes the victims age an essential element that the prosecution must prove beyond reasonable doubt. This Court in Kaingu Elias Kasomo vs. Republic [2010] eKLR held that failure to prove the victim's age beyond a reasonable doubt means the offence itself is not proven. In Hadson Ali Mwachongo vs. Republic [2016] eKLR the Court emphasized that "cogent evidence" of age is necessary because the sentence depends on it. In Edwin Nyambogo Onsongo vs. Republic [2016] eKLR, it was established that age can be proven through credible documents (birth certificates, baptismal cards) or oral testimony from parents/guardians. In this case, the complainant gave her age as 8 years. Her own mother confirmed her age was 8 years. This evidence was not challenged. We find no reason to disturb the concurrent findings by the two courts below. 22. The appellant claims that the charge sheet was fatally defective and that the first appellate failed to fault the trial court for accepting hearsay evidence. We have looked at the appellant’s grounds of appeal presented before the High Court. We have also read the High Court judgment. The appellant did not raise these two grounds before the High Court. This Court has consistently held that an appellant in a second criminal appeal cannot raise new grounds that were not presented, pleaded or canvassed before the High Court. This is because the jurisdiction of this Court in second appeals as governed by Section 361(1) of the Criminal Procedure Code is strictly limited to matters of law arising from the High Court's appellate decision. This Court in Ogolla vs. Republic [2025] (KECA) clarified that a second appeal must be anchored on a matter determined by the High Court. Similarly, this Court in Sichei vs. Republic [2025] (KECA) reaffirmed that the Court of Appeal's jurisdiction is limited to matters of law and it cannot determine issues that fall outside the purview of what was previously. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/619/eng@2026-03-25 4

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23. The appellant faults the first Appellate Court for failing to appreciate that the prosecution evidence was marred by discrepancies. It is a settled principle that minor or trivial contradictions and discrepancies in evidence do not necessarily vitiate a trial or a conviction. Courts recognize that human recollection is fallible and no two witnesses perceive events exactly the same way. In Sigei vs. Republic [2023] KECA 154 this Court held that some inconsistency can actually signify veracity and honesty, whereas unusual uniformity might suggest witness coaching. In Joseph Maina Mwangi vs. Republic [2000] eKLR, the Court stated that discrepancies are bound to occur in any trial. An appellate court must determine if they are so fundamental as to cause prejudice or if they are inconsequential to the conviction. In Odago vs. Republic [2025] KECA 1018, the Court reaffirmed that where discrepancies do not affect an otherwise proved case, a court is entitled to overlook them and proceed to convict. 24. Contradictions or discrepancies in evidence of witnesses that would be fatal must relate to material facts and must be substantial. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. The correct approach is to read the evidence tendered holistically. In this regard, we have carefully considered the testimony of all the prosecution witnesses. We find that no material contradictions or discrepancies to vitiate the trial. 25. Regarding the sentence, it is noteworthy that the mandatory minimum sentence provided for the offfence of defilement of a child aged 11 years or below under Section 8 (2) of the Sexual Offences Act is the life imprisonment. The Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) affirmed the lawfulness of life imprisonment prescribed under the Sexual Offences Act. Therefore, the appellant is serving a lawful sentence. 26. In conclusion, arising from our findings on all the issues determined herein above, we find that this appeal is without merit and the same is hereby dismissed in its entirety. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF MARCH, 2026. J. MATIVO ................................. JUDGE OF APPEAL M. GACHOKA C. Arb, FCIArb ................................. JUDGE OF APPEAL A. O. MUCHELULE ................................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/619/eng@2026-03-25 5

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