Ali Hassan Muteti v Republic

PW2 saw blood stains and cuts on her private parts. She said that Muteti was well known to her and the minor because he lived in their village. She reported the matter to the police. 4. The Investigating Officer, PW3, PC Francis Okonki, confirmed that PW2 reported the matter to him. He saw the minor and noted that blood was dripping from her thighs. The report of the incident was booked by his colleague, PC (W) Wanjiku, who also accompanied the minor and her mother, as well as the appellant, to the hospital for examination and treatment the same night of the incident. He testified further, that he re- arrested the appellant after members of the public brought him to the police station at 10 p.m., on the same night of the incident. The minor identified the appellant to him as her assailant. 5. No evidence was taken from the minor victim, JG, after the court ruled that she did not have sufficient understanding to testify following voire dire examination. 6. The appellant gave an unsworn statement and put forward an alibi defence stating that he spent the whole day in his shamba (farm). He said he was arrested by some people upon returning home. 7. In the judgment of the trial court delivered on 13th January, 2017 by Hon. Soita, he found that the prosecution had proved its case against the appellant. The trial magistrate held that he could safely rely on the evidence adduced before him to convict, despite the absence of the minor victim’s evidence. The appellant was thus convicted of defilement and sentenced to life imprisonment. 8. Aggrieved and dissatisfied with the said judgment, the appellant filed a first appeal to the High Court and sought to have the conviction quashed. He challenged the evidence adduced by the prosecution as being inconsistent and the medical report as lacking corroboration in evidence. He faulted the learned magistrate for failing to hear other witnesses and for allowing the matter to proceed without the complainant’s testimony. He also said that his defence was not considered. 9. In his judgment, Chitembwe, J. held that the child was defiled during the daytime; and that there was strong circumstantial evidence that pointed at the appellant as the perpetrator. The Judge found that the appellant was well known to the minor and ruled that, in the circumstances, there was no need for an ID parade to be conducted in the case. He also found that the minor was defiled during day time. The Judge found the appeal unmerited and dismissed it. 10. Aggrieved and dissatisfied with the said judgment, the appellant preferred a second appeal to this Court. In his Memorandum of Appeal, he faults the learned Judge on nine grounds. The gravamen of his appeal was that the first appellate court failed to discharge its duty of re-considering, re-evaluating and analyzing the evidence; failed to note it was prejudicial to the appellant that vital witnesses were not called, including the complainant; failing to note the name ‘Muteti’ was common in the village where the incident took place; failing to note that the evidence of the complainant’s mother was merely ‘assertions’; and, failing to note that the appellant’s defence was not considered. 11. At the virtual hearing of the appeal on the 26th February, 2025 the appellant appeared in person, while Mr. Muriithi learned prosecution counsel, appeared for the respondent. Both of them relied entirely on their respective written submissions dated 9th January, 2025 and 16th December, 2024, respectively. The appellant, in addition, made brief oral submissions. He asked this Court to forgive him and also stated that he was young at the time of the commission of the offence. 12. In his written submissions, the appellant urged that the first appellate court failed in its duty to reevaluate and re-analyze the evidence, particularly on the critical ingredients of the offence of defilement, penetration, age, and identification. Citing F.O.D vs. Republic [2014] eKLR, he argued that the prosecution failed to establish penetration as defined under section 2 of SOA since the complainant only stated she had been “burnt” or “pressed,” which did not amount to penetration. Regarding identification, he argued that there were other people going by the name ‘Muteti’ in the village and no https://new.kenyalaw.org/akn/ke/judgment/keca/2026/666/eng@2026-03-25 2

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identification was conducted, thereby risking mistaken identity. He invoked section 36 of the SOA, which allows medical or forensic testing to establish guilt, none of which was carried out. 13. The appellant also faulted the failure to call the complainant herself, who was the key witness, and argued that it was prejudicial as her evidence was central. He relied on the case of Odong’o & Another vs. Bonge, Supreme Court of Uganda, Appeal No. 10 of 1987 (UR) Odoni, JSC, where it was held that adequacy of evidence is a substantive matter. He also faulted the failure to call the medical officer who examined the complainant. He submitted that the testimony of PW1, who was not the maker of the P3 Form, was inadmissible and unreliable. He relied on the case of Emmanuel Mwadime vs. Republic [2016] eKLR, in which the Court cautioned against convicting without credible medical evidence. 14. In addition, the appellant contended that there were inconsistencies in the evidence. He highlighted contradictions between the complainant’s narration of being burnt and the medical evidence, as well as ambiguities in the charge sheet. He urged that the defective charge sheet rendered the proceedings unsafe since it did not properly disclose the offence as required by law. 15. Lastly, the appellant challenged the mandatory life sentence imposed under section 8(2) of the Sexual Offences Act. He argued that it was harsh, unconstitutional, and deprived the court of discretion. He cited the case of S vs. Scott Crossley [2008] SACR 223 (SCA), which emphasized proportionality in sentencing and S vs. Toms [1990] (2) SA 802 (A) where mandatory sentences were described as reducing courts to mere “rubber stamps.” He submitted that punishment must balance deterrence with fairness and therefore urged this Court to find that he was mistakenly convicted and to set him at liberty. 16. Mr. Muriithi for the State opposed the appeal and submitted that the jurisdiction of this Court is limited to matters of law as laid out under section 361 of the Criminal Procedure Code, the same being buttressed in the case of Hillary Ndugutho Mwai & Another vs. Republic [2021] KECA 1002 (KLR). The respondent argued that the main ground by the appellant is re-evaluation of evidence, which was a point of law, and which he emphasized cannot stand, as this is a second appeal and the Court’s jurisdiction was limited to matters of law. 17. The respondent maintained that the first appellate court considered the elements that constitute the offence of defilement and established that the prosecution had proved the elements. For that proposition, he relied on the case of Kyalo Kioko vs. Republic [2016] KEHC 365 (KLR), which quoted with approval the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, which highlighted the critical ingredients forming the offence of defilement as age of the complainant, proof of penetration and positive identification of the assailant. 18. In rejoinder, Mr. Muriithi submitted that the sentence imposed against the appellant was the only sentence that is provided for by the SOA, noting that the complainant was four (4) years old. On the argument advanced by the appellant that he was young at the time of the commission of the offence, Mr. Muriithi contended that the appellant had nothing to show that he was 16 years of age then, however, in his opinion, that would not have changed anything. He urged the Court to uphold the conviction and the sentence. 19. In the written submissions, the respondent argued that it was established that the complainant was four (4) years old at the time of the commission of the offence. On penetration, it was argued that PW2 testified that the minor informed her that she had been burned and pointed to her private part. Further, upon examination, PW2 noted that the minor had blood stains and cuts on her private part and the same was confirmed by PW1, who testified on behalf of his colleague, one David Njuge, who examined the minor and concluded that there had been penetration. Lastly, on the issue of identification, the respondent submitted that the first appellate court rightly held that there was no https://new.kenyalaw.org/akn/ke/judgment/keca/2026/666/eng@2026-03-25 3

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need for an identification parade as the minor knew the appellant and the evidence clearly established that the “Muteti” referred to by the minor was, in fact, the appellant. 20. On the issue that the complainant did not testify, the respondent relied on the case of M.M vs. Republic [2014] eKLR and submitted that the High Court rightly found that the absence of the minor’s testimony did not imply that the incident did not occur, nor did it weaken the prosecution’s case. 21. On inconsistencies and contradictory evidence, the respondent urged that there were no contractions or inconsistencies, and argued that even if there were, the same were minor and did not go to the root of the prosecution case, hence urged this Court to ignore them. 22. We have carefully considered this appeal, the rival oral and written submissions of the parties together with the record of appeal, and the authorities relied thereon. Having done so, we find that the issues that fall for our determination are: i. ii. 23. whether the first appellate court failed in its duty to re-evaluate, re-consider and re-analyze the evidence, particularly: i. on the critical issue of the ingredients of the offence of defilement; ii. on the issue of whether there were material inconsistencies in the evidence of the prosecution; iii. whether the prosecution adduced sufficient evidence to prove that the appellant was the perpetrator of the act of defilement against the victim; iv. whether voire dire examination was conducted, and whether failure to receive the evidence of the minor complainant prejudiced the appellant. Whether the sentence of life imprisonment was severe and whether this Court can interfere with it. Being a second appeal, our mandate is circumscribed by section 361 (1)(a) of the Criminal Procedure Code to deal with matters of law only if we find that there are any raised in the appeal. We must resist the temptation to deal with facts of the case which were tried by the trial court and retried on first appeal. That mandate was recognized as follows in Stephen M'Irungi & Another vs. Republic [1982-88] 1 KAR 360 where the following passage appears: “ Where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed finding of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.” 24. The appellant has faulted the first appellate court of failing in its duty to re-consider, re-evaluate and analyze the evidence. Failure by the High Court, as a first appellate court to consider the evidence afresh, examine and analyze and subject it to fresh scrutiny, is a point of law, and once raised, as the appellant has, it falls for our consideration in this appeal. We are in agreement with the position taken by this Court in Jonas Akuno O’kubasu vs. Republic [2000] eKLR, where it was held that: “It is correct that on first appeal the appellant is entitled to have the appellate court’s own consideration and view of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the material before the judge or magistrate with such https://new.kenyalaw.org/akn/ke/judgment/keca/2026/666/eng@2026-03-25 4

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other material as it may decide to admit. The appellate court must make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it … On second appeal, it becomes a question of law as to whether the first appellate court on approaching its task, applied or failed to apply such principles.” 25. The appellant contends that that the prosecution failed to establish penetration as defined under section 2 of SOA since the minor victim only stated she had been “burnt” or “pressed,” which did not amount to penetration. That on issue of identification, whether the commonality of the name Muteti in the area, and lack of conduct of identification raised doubt in the prosecution case and that that doubt should have been resolved in his favour. 26. In John Mutua Munyoki vs. Republic [2017] KECA 376 (KLR) this Court re-stated the main ingredients for the offence of defilement as set out under section 8(1) of the SOA, which were proof that the victim was a minor, that there was penetration of the genital organ of the victim and such penetration need not be complete or absolute. Thirdly, proof that the identity of the offender was established to be the one charged before court. 27. The issue is whether the learned Judge fulfilled his duty to examine, consider and analyze afresh the evidence adduced before the trial court, as mandated of a first appellate court. On the issue whether evidence was adduced to establish whether the prosecution proved the element of age of the victim, the element of penetration and the defilement of the victim, the learned Judge observed as follows: “ The issue for determination is whether PW3 was defiled and whether it was the appellant who defiled her. The victim did not testify. A Vaccination health and Nutrition card was produced. The victim was born on 27/10/2011. PW2, the victim’s mother observed the child and saw cuts and blood on her private parts. PW 4 did not observe the victim but saw blood dripping from the victim’s private parts. Given the evidence on record, I do find that indeed the victim was defiled. Her hymen was broken. She was only about five (5) years old. There was fresh blood coming from her private parts. The prosecution evidence sufficiently proves that PW3 was defiled … The appellant contends that there is difference between burning and defilement. This was a five year old who did not know what defilement is.” 28. We find that the learned Judge addressed the issues of the elements of the offence of defilement, and subjected the evidence to a fresh evaluation. On the element of the age of the victim and the element of penetration, the learned Judge found that both elements were proved. 29. The appellant raised another issue touching on penetration. The appellant argued that there were inconsistencies and contradictions in the prosecution evidence with regards to penetration as narrated by the victim and in the medical report. He took issue with the way the victim described what was done to her, specifically that she was burned; and the medical evidence indicating that she was defiled. The victim was 4 years old. Due to her tender age, she may not have been precise in describing what was done to her. PW2 noticed blood and cuts on her vagina. The nature of the injuries was confirmed by PW1 as defilement. The use of the wrong words by the victim to describe what was done to her is not, in our view a contradiction or inconsistency. We agree with the Judge that failure to know what befell her, at the tender age of 4 years did not render the prosecution case weak. The fact she pointed to her private part as the area ‘burnt, and fact injuries were indeed found in same area, which were consistent with defilement and not burns, is proof that indeed the victim knew she had been violated but did not have the correct way to describe it. We find no merit to this complaint. Nothing turns on this point. 30. We have considered the judgment of the learned Judge and are satisfied that he considered at length the evidence adduced before the trial court relevant to the issue of whether the ingredients of the offence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/666/eng@2026-03-25 5

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of defilement were established, and that he re-analyzed and re-examined the evidence and came to the correct conclusion that the main elements of the charge were proved, thus upholding the trial court’s finding on the same. 31. On the issue of identity of the culprit the learned Judge observed: “ PW2 did not witness the incident. However the evidence does prove that immediately the child was defiled she informed her mother that she had been pressed by Muteti. That pressing was in reference to the injuries to her private parts. PW2’s evidence was that the victim knew the appellant as a neighbour. It is established that the victim knew the appellant and there was no need for identification parade.” The learned Judge continued to state: PW2 testified that the child saw the appellant and started crying. PW4 testified that although there are several Muteti's in the area, the child identified the appellant. Although the process of identification is not clear, I am satisfied that the Muteti being mentioned by the victim is the appellant.” 32. On the issue of the evidence supporting the identification of the appellant as the perpetrator of the offence, we are satisfied that the learned Judge made a full evaluation of the evidence adduced by the prosecution. We are also satisfied, upon our own consideration of the evidence that the learned Judge came to the correct finding on this issue. The evidence of PW2 confirming that the minor knew the appellant very well as they were neighbours and further that the minor had gone to visit her friend who was sister to the appellant, just before the incident occurred; the fact that the minor gave her the appellant’s name as the perpetrator at the very first opportunity she had to report the incident to her all confirm that the minor knew the appellant very well before the incident. We also find the evidence of PW4 that the minor identified the appellant as her assailant immediately he was brought to the station by members of the public, same day of incident. PW4 observation that when the appellant and the minor were taken to the hospital together, the minor was frightened of the appellant, all go to confirm that she was clear of the identity of the one who committed the hideous act against her. Considering the totality of this evidence; we are satisfied that the appellant was properly identified by the minor, and that she had not made any mistake in the identity of her defiler. Nothing turns on this ground. 33. On the issue of whether the Judge failed to properly analyze whether the trial court conducted voire dire examination. The learned Judge in his judgment observed: “ … The trial court conducted voire dire and concluded that the child was not fit to testify… I believe the trial court was better placed to make the observations it did as the victim was physically present before the court and the trial magistrate talked to her… The trial court cannot force minors aged as low as two years old to tell the court what happened to them.” 34. We have considered this challenge to the learned Judge’s consideration on the issue of voire dire examination and his finding that the trial court handled the issue correctly. This Court in Maripett Loonkomok vs. Republic [2016] eKLR elaborated that there is no required format for conducting and recording a voire dire. The only test is whether the trial court performed voire dire in a manner that satisfies an objective observer that the court obtained sufficient material to make a determination whether the minor witness understood the nature of an oath or had sufficient intelligence to testify and understood the duty to tell the truth. We are satisfied, from our reading of the record that the learned Judge analyzed the record and concluded that the trial court acted correctly when conducting the voire dire. We do find that indeed the Judge performed his duty as expected, and cannot be faulted of failure to re-examine and re-analyze the same. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/666/eng@2026-03-25 6

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35. The trial court, during the voire dire examination, appointed PW2 as an intermediary to assist in the examination of the victim in order to aid him arrive at a determination whether to receive the victim’s evidence or not. He was satisfied that the victim lacked sufficient knowledge to testify. We are satisfied that indeed, due to her tender age and based on the answers she gave to questions put to her, which are on record, the trial court and also the learned Judge ruled correctly on this issue. 36. The appellant’s view was that failure to have the victim testify was prejudicial to him. In Bassita Hussein vs. Uganda, Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda held that: “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim’s evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt.” 37. We resonate with the view of the Supreme Court of Uganda. Penetration in a sexual offence can be proved by either, direct or circumstantial evidence. It can also be corroborated by medical or other evidence. Even though the best case scenario is to have the victim or complainant testify, like in this case, that ideal situation may not always be achievable. In this case, the victim was 4 years old. As the learned Judge observed, the trial court could not have been expected to force or insist on the testimony of the child victim. The prosecution therefore looked for other evidence to sustain the charge. Given the circumstances, it cannot be said that the appellant was prejudiced as there was sufficient evidence placed before the court to sustain the conviction. We find that nothing turns on this ground. 38. On sentence, the appellant argued that the sentence of life imprisonment was harsh, unconstitutional and deprived the court of its discretion. He also alluded to being below 18 years at the time of trial. As relates to the appellant’s age, we agree with the learned Judge that he did not raise this issue before the trial court which had the best opportunity to test that allegation, and even call for further evidence, including medical or scientific test to establish the truth. The appellant placed nothing before the court in support of that allegation. Raising that issue for the first time before the first appellate court and indeed in his submissions, was too late in the day and appears to have been an afterthought and deserves no consideration by this Court. 39. The appellant faced the charge of defilement contrary to section 8(1) as read with section 8(2) of the SOA. He was sentenced to life imprisonment by the trial court, which is the mandatory sentence prescribed under section 8(2) of the SOA. The High Court dismissed his appeal in its entirety, meaning that the conviction and the sentence by the trial court were upheld. 40. The appellant raises the issue of the severity of the sentence and the taking away of the courts’ exercise of discretion when it comes to sentencing, urging that it was unconstitutional. In regard to the severity of sentence, the life sentence imposed on the appellant is the mandatory sentence provided in section 8(2) of the Sexual Offences Act. The issue as to whether the courts had discretion to reduce sentences prescribed under the Sexual Offences Act has now been made clear in the Supreme Court decision of Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (amicus curiae) [2024] KESC 34 (KLR). 41. In view of the Republic vs. Mwangi case, (supra), we have no jurisdiction to interfere with the sentence as confirmed by the High Court. In the premises, the appellant’s appeal lacks in merit and is dismissed in its entirety. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/666/eng@2026-03-25 7

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DATED AND DELIVERED IN NYERI THIS 25TH DAY OF MARCH, 2026. S. OLE KANTAI ............................... JUDGE OF APPEAL J. LESIIT ............................... JUDGE OF APPEAL ALI – ARONI ............................... 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/2026/666/eng@2026-03-25 8

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