Peter Kinyua Maina v Republic

relayed the information to PW3, GKM alias M, a teacher of the special school, that a child with a mild mental retardation from their school had been sexually assaulted. The teacher proceeded to the Post where he identified PW1 as their student and, together with PW2, took PW1 to her parents in Mweru. 3. PW1’s mother, IWM (PW5), returned home the same day at around 8 pm, but found PW1 missing. She was later informed by PW1’s grandmother that PW1 had been found and was at Ngamwa Police Post. She took PW1 to Mukurweini Police Station, where a P3 Form was issued and thereafter took her to the hospital for examination. PW1 narrated to her that she had been defiled by the appellant, who was known to PW5. It was her evidence that she had seen Kinyua at one Irungu’s place on that day and that PW1 had left home at 6 pm. The P3 form for PW1 was produced by PW7, Dr. Wamuyu Lucy, on behalf of his colleague, Dr. Gichuhi, with whose handwriting he was familiar. According to the report, PW1 was 14 years old. From the examination, it was established that PW1’s hymen was broken and there was foul smelling vaginal discharge. 4. The appellant was arrested by the chief, PW4. 5. Investigations into the incident were carried out by PW8, PC Muniki David, who recorded statements from the witnesses before preferring charges against the appellant. 6. When placed on his defence, the appellant (DW1) stated that on 14th March 2015, he woke up at about 1 pm and at 3 pm, went to the shamba. At 5.30 pm, he went to a bar at Kamung’ere shopping Centre, where he was with his friend Kamotho, who left him there at the bar at 9pm. At 10 pm he also left the bar. He denied responsibility for the defilement of PW1 and denied being at the place where she was defiled. DW2, Julius Kamotho Wainaina’s evidence supported the appellant’s evidence that they were drinking together on the material day until about 9.30 pm, when he left. DW3, Esther Nyokabi, a bar attendant at the bar, also confirmed that on 14th March 2015, the appellant went to the bar at 5 pm and left at 10 pm. She confirmed that the appellant was in the company of DW2. 7. In his judgment, the learned trial magistrate found that PW1’s coherent evidence was supported by that of PW2; that PW1 clearly identified the appellant, who was well known to her; that further corroboration came in the form of medical evidence; that the appellant’s alibi defence did not wash; and that the appellant was guilty as charged. He was sentenced to serve 20 years' imprisonment. 8. Aggrieved, the appellant lodged an appeal at the High Court, Nyeri on grounds that: learned trial magistrate erred both in law and in fact in failing to note that the age of the complainant was not properly established; when he based the conviction of the appellant on the evidence which was fraught with malice and inconsistencies; when he relied on medical evidence which was not sufficient to link the appellant with the alleged ofience; and, in dismissing the appellant's defence which was not challenged by the prosecution. 9. In his judgment, Ngaah J., in finding no merit in the appeal, held: that the evidence of PW1, together with that of the doctor left no doubt that the complainant had been sexually assaulted considering that the hymen had been broken and there was a foul discharge from her vagina soon after the assault; that PW1 age was proved through her testimony and the medical records, which were not controverted by the appellant; that the appellant was known by PW1 and her evidence was not controverted, thus there was no reason to believe her; and that the alibi defence did not cast doubt or displace the evidence of PW1 that the appellant had defiled her in the thicket bush and was therefore at the locus in quo. 10. In this appeal, the appellant has raised the following grounds: 1. The learned Judge erred in law by failing to take into consideration that the age of the complainant was never proved by presenting any tangible documents as required by law. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/759/eng@2026-04-24 2

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2. The learned Judge erred in law by relying on the medical evidence which was faulty and unreliable as it never linked the appellant with the alleged ofience. 3. The learned Judge erred in law and facts by dismissing the appellants sworn defense without giving good reason for doing so. 4. The learned Judge erred in law and facts by accepting and convicting on evidence which was inconsistent and contradictory. 11. We heard this appeal on 5th November 2025 on the Court’s virtual platform when the appellant appeared in person from Mwea Prison while the respondent was represented by learned counsel, Ms Naulikha. Both the appellant and Ms Naulika relied entirely on their written submissions. 12. It was submitted by the appellant: that apart from PW1 stating her age to be 14 years, PW1's mother neither produced a baptismal certificate nor a birth certificate which are crucial documents to certify one's age or she could have verbally disclosed PW1’s age; that the investigator and PW5 remained silent on PW1’s age, hence PW1’s evidence was hypothetical and unreliable; that PW1 did not state the time she was defied and since PW2 stated that PW1 stopped him at about 7.30 pm, the incident must have occurred at night; that PW1 did not shed light on what she was doing in the bush at night prior to her encounter with the appellant; that PW1 could not identify her attacker at such time of the night considering the darkness in the bush that was increased by the thicket therein, thus the identity of the assailant was not proved beyond all reasonable doubt; that since it was doubtful from PW1’s evidence as to what happened to her, the appellant’s culpability was not proved; that the voire dire examination was not conducted to the required standard; that PW1 did not state that she was penetrated but only stated that she felt pain; that the inconsistencies and contradictions were many and sufficient to warrant the appellant’s acquittal. In support of his appeal, the appellant cited the cases Machakos Petition No. E 017 of 2021 - Phillip Maingi Mueke & 5 others v Rep. and Machakos High Court Petition No. 97 of 2021 - Edwin Wachira and others v Republic to highlight the court’s discretionary power in sentencing and urged this Court to impose any other sentence or acquit him since he is a changed man. 13. On the part of the respondent, it was submitted: that PW1’s age was corroborated by PW7’s evidence and the P3 form which were not challenged during cross-examination; that the P3 form and treatment notes which revealed that PW1’s hymen was broken were not challenged at all; that the alibi defence was a mere denial; and that the appellant did not point out and the record does not show any contradictions capable of vitiating the evidentiary weight of the prosecution witnesses’ evidence. The respondent urged this Court to find the appeal devoid of merit and dismiss it. 14. We have considered the submissions made in this appeal. Our jurisdiction in a second appeal, such as the present one, is captured in section 361(1) of the Criminal Procedure Code, which provides that: A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section— a. on a matter of fact, and severity of sentence is a matter of fact; or b. against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/759/eng@2026-04-24 3

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15. Applying the said provision in Karani v R [2010] 1 KLR 73, this Court held that: “ By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.” 16. Therefore, as held by this Court in the case of Stephen M'Irungi & Another v Republic [1982-88] 1 KAR 360 held that we have: "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." 17. We must point out that some of the issues submitted on, such as the identification of the appellant, penetration and the conduct of voir dire examination, did not form part of the grounds of appeal. Such issues cannot be dealt with since as rule 74(1) of this Court’s Rules provides that: the appellant shall not, without the leave of the Court, argue any ground of appeal that was not specified in the memorandum of appeal or in any supplementary memorandum lodged under rule 67. 18. Regarding the issue of whether the age of the complaint was proved, the evidence of PW1 during the voire dire examination was that she was 14 years old. Her evidence, given on oath, was corroborated by the evidence of PW7, who stated that from the P3 form, which was admitted without objection, PW1 was 14 years old. While it would have been better for PW1’s mother to testify as to PW1’s age, we find that there was sufficient material on record, on the basis of which the two courts below could make a decision regarding PW1’s age. In arriving at our finding, we call to mind this Court’s decision in Tuwei v Republic [2023] KECA 1298 (KLR) where it was held that: “It has been held in various decisions of this Court that a complainant’s age can either be established through consistent and corroborated oral evidence or the production of documentary evidence…We only need to add that the prosecution ought to endeavor to make available any documentary evidence establishing a complainant’s age, as such documents are more readily available in the present age and times. From the record, and as rightly pointed out by counsel for the respondent, the evidence of the complainant’s age is found in her voir dire examination when she stated that she was 10 years old. The second piece of evidence is traceable to the P3 form, where Dr. Birech in Part C of the form estimated the complainant’s age to be 10 years. It is important to observe that at the conclusion of the voir dire examination, the trial magistrate found that the complainant understood the essence of an oath and was to give sworn testimony. In the circumstances, we find the evidence on record corroborated and sufficient to prove that the complainant was aged 10 years. The appellant’s assertion that the age of the complainant was not proved, hence the ofience was not established, is therefore rejected.” 19. The two courts below, based on the evidence presented, believed that PW1 was 14 years old. That was a finding of fact with which we can only interfere if we are satisfied that the trial court and the first appellate court considered matters, they ought not to have considered: or failed to consider matters they should have considered: or that, looking at the evidence as a whole, they were plainly wrong in https://new.kenyalaw.org/akn/ke/judgment/keca/2026/759/eng@2026-04-24 4

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their decision. We are not persuaded that those circumstances exist in this appeal. That ground of appeal fails. 20. On whether the medical report was faulty for not linking the appellant to the ofience, in sexual ofiences cases, the purpose of a medical report, unless it is a DNA report or a report resulting from an examination of the suspect, is not meant to link the appellant to the ofience. Rather, the purpose of a medical examination of the victim is to find whether or not there was penetration of the genital organs. Therefore, the fact that the medical report did not point to the appellant as the culprit, does not necessarily render the report faulty. This ground, similarly, fails. 21. The appellant also complained that the learned Judge erred in dismissing his sworn defence without giving a good reason for doing so. The trial court was confronted by two sets of evidence. The prosecution’s evidence was that PW1, who knew the appellant very well as a neighbour, saw him that evening at 6. 30 pm before the appellant dragged him into the thicket and defiled her. She disclosed this fact to PW2 immediately thereafter. The same information was disclosed to her mother, PW5. On the other hand, the appellant’s evidence was that he went to a bar at 5.30pm. His witness, DW2, a brother, stated that he was with the appellant till 9.30pm. He did not state when they went to the bar. DW3, a bar attendant, stated that the appellant went to the bar at 5pm and left at 10pm. Whereas the appellant’s evidence was that he never visited the place where the alleged defilement took place, PW5 testified that she had seen the appellant earlier in the day. Confronted with two sets of evidence, the two courts below found, on the facts, that the appellant was at the scene. As we have stated above, when called upon to interfere with such findings, we must bear in mind that, unlike the trial magistrate, we had not the advantage of seeing the witnesses testify. Similarly, unlike the learned Judge, our mandate does not encompass the re- evaluation and re-analysis of the evidence presented before the trial court. The default position, as stated in Adan Muraguri Mungara v R [2010] KECA 131 (KLR), is that we have a duty to: “ pay homage to concurrent findings of fact made by two courts below, unless such findings are based on no evidence at all, or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings.” 22. Clearly, there was evidence on the basis of which the two courts arrived at the finding that the appellant was at the scene. We cannot substitute that finding of fact with our own views. 23. The appellant contended that the learned Judge erred in law and fact by accepting and convicting him on evidence which was inconsistent and contradictory. The appellant, however, did not point out the alleged inconsistent and contradictory evidence. Inconsistent evidence, it has been held, is only material if it goes to the root of the case. Where they are minor, this Court, particularly on a second appeal, will not interfere. See Republic v Ahmad Abolfathi Mohammed & Another [2019] eKLR. 24. Although not raised in the grounds of appeal, the appellant urged us to interfere with the sentence. The law is that harshness and excessiveness, as opposed to legality, of sentences fall outside the purview of this Court’s jurisdiction on second appeal. See Republic v Joshua Gichuki Mwangi & 4 Others (2024) KESC 34 KLR. 25. In the circumstances, we find no merit in this appeal, which we hereby dismiss in its entirety and uphold the learned Judge’s judgement. It is so ordered. DATED AND DELIVERED AT NYERI THIS 24TH DAY OF APRIL, 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/759/eng@2026-04-24 5

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S. ole KANTAI …………………………… JUDGE OF APPEAL ALI-ARONI …………………………… JUDGE OF APPEAL G. V. ODUNGA …………………………… 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/2026/759/eng@2026-04-24 6

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