Njogu v Republic

for upholding his conviction and sentence on the basis of doubtful evidence; contends that penetration was not proved; alleges that he was convicted on the basis of shoddy and unfounded investigations; for shifting the burden of proof to him; and for not considering his defence. 5. The appellant contends that the rst appellate court failed to discharge the duty of a rst appellate court to independently and exhaustively evaluate the evidence before arming the ndings of the trial court. He further faults the rst appellate for failing to nd that the prosecution evidence contained material contradictions and inconsistencies regarding the date and time of the alleged oence and the identity of the perpetrator; for failing to nd that the prosecution had not proved penetration beyond reasonable doubt; for upholding the conviction notwithstanding the absence of forensic or DNA evidence linking him to the oence; for failing to nd that the investigations were inadequate and that crucial witnesses were not called; for rejecting his sworn defence and alibi without proper evaluation; and for arming the mandatory sentence of life imprisonment notwithstanding the prevailing constitutional jurisprudence on mandatory sentences. 6. As this is a second appeal, our jurisdiction is circumscribed by section 361(1) of the Criminal Procedure Code, which connes this Court to a consideration of matters of law only. A second appellate court will not interfere with concurrent ndings of fact by the two courts below unless it is shown that there was no evidence to support those ndings, that the courts misapprehended the evidence, or that they acted on wrong principles in reaching their conclusions-see Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR); Karingo v Republic [1982] KLR 213 and M’Riungu v Republic [1983] KLR 455. 7. Before examining such questions of law as may arise in this appeal, it is useful to consider the facts presented before the trial court. PW1, the complainant, testied that she was 8 years old, born on 31st July 2004. On 5th September 2013, the appellant, who was a neighbour and whom she referred to as ‘Njiru Fundi’ called her to his house. He undressed her, laid her on a seat, and lay on top of her. He then sent her outside. She testied that she felt pain; that she informed her mother and sister; and the appellant was warned not to do so again. 8. The complainant further testied that on another date thereafter, the appellant again called her, undressed her and deled her. She experienced pain in her stomach when going to school, and a teacher, Jane Mwangi (PW5), who noticed that she was in pain and having diculty walking, reported to the head teacher. 9. The complainant’s mother, JWM (PW2) was called to the school and the complainant narrated what had happened to her. PW2 conrmed that the appellant, whom she knew as Njiru Fundi, lived in the same compound as she and her children, including the complainant. She conrmed that she took the complainant to Kibimbi Sub-county Hospital where she was examined by Stephen Kiama Maina (PW4), a clinical ocer at the Hospital. PW4 He competed the P3 form, which he produced in evidence, and conrmed that the complainant had been deled. It was his testimony that the complainant’s labia majora and minora were swollen and the hymen was broken. A laboratory examination showed pus cells and red blood cells, but no spermatozoa was seen. 10. PW3, No. .20xxx1 Sergeant Elijah Rotich, was the arresting ocer who, with Corporal Muchiri, received the complainant and her mother at the Kimbimbi Police Station. They were led to the appellant’s house by PW2, where they waited for him for about 30 minutes before he returned, and they arrested him. The investigating ocer, No. 6xxx3 Corporal Magdalene Mbula, conrmed that reports relating to the delement of the complainant had been made and investigations carried out before the arrest of the appellant. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1858/eng@2026-09-25 2

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11. In his defence, the appellant stated that he was a farmer and a watchman. He had come home at 6.00 a.m on 4th September 2013 from his work at the KHA (Kenya Horticulture Expenses (sic). That his wife told him that APs were looking for him. He was arrested on 5th September 2013 as he was preparing to go to KHA. He was taken to Kimbimbi Sub County Hospital where he was examined and later taken to court. He denied committing the oence. In cross-examination, he denied that he was a fundi, or that he was a neighbour of the complainant and PW2. 12. At the hearing of the appeal, the appellant was present virtually from Nyeri Maximum Prison. He relied on his undated submissions in which he contends that his conviction was unsafe as it was founded upon contradictory and inconsistent evidence; that the particulars of the oence against him diered materially from the evidence adduced at the trial regarding the dates and times of the alleged oence; that although the prosecution witnesses referred to the perpetrator as ‘Fundi’, there was no evidence establishing that he was known by that name, or that he was a carpenter. He maintained that he was a farmer and a watchman, employed by Kenya Horticultural Exporters (sic), and contended that the inconsistencies raised a reasonable doubt as to the identity of the perpetrator. 13. The appellant further submits that penetration was not proved beyond reasonable doubt. He submits that the complainant merely testied that he lay on top of her and did not expressly describe penetration; that the medical evidence did not show the presence of spermatozoa; and that neither DNA analysis nor medical examination was undertaken to establish a forensic nexus between him and the complainant. The appellant further impugns the investigations, contending that the investigating ocer neither visited the alleged scene of crime nor veried the residences of the witnesses. 14. The appellant further complains that the prosecution failed to call material witnesses, including the complainant's sister and other tenants residing in the compound. He contends that the trial court and the rst appellate court improperly rejected his sworn defence and alibi, thereby shifting the burden of proof to him; and that the rst appellate court failed to undertake a fresh and independent evaluation of the evidence as required of a rst appellate court. 15. Finally, the appellant complains about the sentence imposed on him. He asserts that the mandatory life imprisonment prescribed under section 8(2) of the Sexual Offences Act was unconstitutional in light of recent jurisprudence recognising judicial discretion in sentencing. The appellant prays that his conviction be quashed and the sentence set aside or, in the alternative, that the matter be remitted for re-sentencing. 16. Ms. Kaniu, Principal Prosecution Counsel appearing for the State, highlighted the respondent’s submissions dated 2nd March 2026. The respondent notes that this being a second appeal, the Court's jurisdiction is conned to matters of law under section 361 of the Criminal Procedure Code, and there is no basis for disturbing the concurrent ndings of fact by the two courts below. 17. The respondent submits that the prosecution had proved all the essential ingredients of the oence of delement beyond reasonable doubt; that the complainant's age was established by documentary evidence; penetration was proved by both the complainant's testimony and the medical evidence; and the appellant was positively recognised by the complainant, who knew him as a neighbour. 18. It is the respondent’s submission further that the discrepancies regarding the dates of the oence did not go to the root of the prosecution case, and the delay in reporting was satisfactorily explained by the threats allegedly issued by the appellant. 19. Regarding the appellant’s complaints that there was no DNA or medical evidence connecting him to the oence, the respondent submits that neither DNA analysis nor medical examination of an accused https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1858/eng@2026-09-25 3

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person was a mandatory requirement for proving the oence of delement. Further, that the slightest penetration was sucient to constitute the oence under the Sexual Offences Act; and the medical evidence, considered together with the complainant's testimony, suciently established penetration. 20. With regard to the appellant’s complaint that the prosecution had failed to call crucial witnesses, the respondent submits that the failure to call additional witnesses did not render the prosecution case defective, and the appellant had not demonstrated that the evidence of any of the persons not called as witnesses was essential to the determination of the charge. 21. The respondent submits further that the appellant's defence and alibi had been considered and properly rejected by the two courts below, and that the burden of proof had not been shifted to him. It was the respondent’s submission that the rst appellate court properly discharged its duty by evaluating the evidence and reaching an independent conclusion. 22. The respondent submits that the sentence imposed under section 8(2) of the Sexual Offences Act was lawful. It refers to the decision of the Supreme Court in Joshua Gichuki Mwangi v Republic [2024] eKLR which upheld the constitutionality of the mandatory minimum sentences prescribed under the Sexual Offences Act. The respondent urged the Court to dismiss the appeal and uphold the appellant’s conviction and sentence. We have considered the record of appeal, the judgment of the rst appellate court, the appellant’s grounds of appeal and the submissions of the parties. We note that the appellant makes several arguments in his appeal, some of which are not properly questions of law for determination in this Court. We shall, nonetheless, consider them before embarking on an analysis of what we consider substantive issues of law arising in this appeal. 23. We note that the appellant has argued in his grounds of appeal that there were discrepancies concerning the dates and times of the alleged oence; that the investigations were inadequate; that material witnesses were not called; and that his alibi defence was not considered. 24. Regarding the question of discrepancies in the dates of the oence, we note that this is a question of fact that was considered and concurrent ndings made by the two courts below. The charge against the appellant alleged that the oence was committed on diverse dates between August and September 2013. The evidence before the trial court indicated that there were at least two incidents, with the one of 5th September 2013 being the one that was reported and investigated. We are unable to nd such discrepancies as would warrant our interfering with the concurrent ndings of fact on the issue by the two courts, bearing in mind the position in law that not every discrepancy or inconsistency in the prosecution evidence is fatal to a conviction. 25. The trial court considered the discrepancies complained of and nevertheless found the prosecution evidence credible. The High Court, in evaluating the evidence before the trial court, reached the same conclusion. We are not persuaded that the discrepancies were material, or that they undermined the prosecution case. 26. The appellant has further complained that the investigations were inadequate, and that material witnesses were not called. He submits that the investigating ocer did not visit the scene or verify the residences of the witnesses, and that the complainant's sister and other persons residing in the compound were not called to testify. Regarding the complaint that the investigating ocer did not visit the scene, we have noted the testimony of PC Rotich, the arresting ocer, that he was directed to the appellant’s house by PW2, the complainant’s mother; that the house was within the same compound as the complainant’s; that he waited for the appellant for half an hour and arrested him when he returned to his house https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1858/eng@2026-09-25 4

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27. The appellant has not demonstrated that he suered any prejudice by the investigating ocer not vising the scene, or what material dierence such a visit would have made to the case. The evidence of the complainant was that the appellant, who was a neighbour, deled her. Her mother conrmed that the appellant was a neighbour. He was arrested in the house pointed out by the complainant’s mother, PW2. A visit by the investigating ocer to the scene would not have made a dierence to the evidence, one way or the other. 28. The appellant has also complained that material witnesses, such as the complainant’s sister, were not called to testify. Under section 143 of the Evidence Act, the prosecution is not required to call a particular number of witnesses, provided that the evidence presented establishes the oence charged beyond reasonable doubt. In Wafula v Republic [2026] KECA 1161 (KLR), this Court cited with approval the case of Bukenya & Others v Uganda [1972] EA 549 in which the court held that the prosecution must make available all witnesses necessary to establish the truth, even if such witnesses’ evidence may be inconsistent with its case. Further, that an adverse inference may be drawn from the failure to call an essential witness where the evidence adduced is barely adequate. In this case, the appellant has not demonstrated what material evidence the complainant’s sister or other persons living in the same compound as the appellant and the complainant would have provided; or how the failure to call them as witnesses rendered the prosecution evidence insucient to establish any of the essential ingredients of the oence. 29. The appellant also challenges the manner in which his sworn defence and alibi were treated. The burden of proving the charge against the appellant remained throughout upon the prosecution and did not shift to the appellant. As this Court held in Joseph Waiguru Wang’ombe v Republic [1980] KECA 6 (KLR), an accused person who raises an alibiassumes no burden of proving it; the burden of proving guilt remains upon the prosecution 30. The question is whether the appellant raised an alibi defence and, secondly, whether such defence, when considered against the prosecution evidence, was sucient to displace it. We note, rst, that the appellant did not raise an alibi defence. He denied committing the oence, and denied that he was a ‘fundi’ or carpenter but asserted that he worked as a farmer at SHA and as a watchman. He did not deny that he stayed in the same compound as the complainant. Having considered the judgments of the two courts below, we are satised that they considered his defence against the prosecution evidence and properly rejected it. 31. The appellant raises two further issues which we consider to be more substantive issues of law. The rst is whether the rst appellate court discharged its burden of subjecting the evidence before the trial court to an independent evaluation; and secondly, whether the elements of the oence of delement-the age of the complainant, the fact of penetration and the identity of the perpetrator had been established. A third argument raised by the appellant is whether there is any basis for interfering with the sentence imposed by the trial court and upheld by the High Court. We shall consider the rst two issues together. 32. The appellant has complained that the High Court did not evaluate the evidence as required and merely adopted the ndings of the trial court, citing in support the case of Okeno v Republic [1972] EA 32 with respect to the duty of a rst appellate court. 33. We have considered the judgment of the High Court. We note that in its decision, the court considered the prosecution evidence before the trial court and stated as follows at paragraph 5 of the judgment: “ The evidence which was tendered before the trial court was cogent. The complainant testied that she was deled by the appellant who she knew as Njiru Fundi. Her testimony was corroborated by the medical evidence tendered by PW4, the Clinical ocer. The age of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1858/eng@2026-09-25 5

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the complainant was proved to be eight years. The defence of the appellant was not plausible. It was a mere denial. The complainant and her mother had no reason to frame the appellant a fact which appellant admitted upon being cross examined by the prosecution. I am of the opinion that the evidence tendered by the prosecution suciently supported the charge to the required standards.” 20. The age of a complainant is a critical factor under section 8 of the Sexual Offences Act. In Mwachongo v Republic [2016] KECA 521 (KLR) this Court stated: “ In its wisdom Parliament chose to categorize the gravity of that oence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the oence which ought to be proved beyond reasonable doubt. That must be so because dire consequences ow from proof of the oence under section 8(1)...” 17. In this case, the age of the complainant was established through a clinic card, which both the trial court and the rst appellate court considered and found established her age at 8 years. We are satised that the concurrent ndings of the two courts below with respect to the age of the complainant cannot be faulted or interfered with by this Court. 18. With respect to the second element, penetration, the rst appellate court analysed the available evidence and observed as follows: “ The appellant claims that the prosecution had not proved to the appropriate standard that PW1 had been deled. In addition, the appellant was not subjected to any medical/ laboratory test to conrm his physical contact with PW1. PW4 stated that he examined PW1 and her labia major and minor were swollen and the hymen was broken. There were some pus cells and red blood cells were seen but no spermatozoa. The submission by the appellants is far from the truth. The medical evidence proved that there was penetration….” 19. With regard to the identity of the perpetrator of the oence, the trial court held as follows: “ PW 1 stated that the appellant called her to his house, removed her trouser and lay on top of her then told her to go outside. He called her on another date and did the same thing to her. She stated that the deler was the appellant in court, his name was Njiru Fundi and they are neighbours. PW 2 stated that the appellant was called Fundi because of his nature of work. PW 1 was not only able to identify the appellant but recognized him since he was their neighbour. 6. From the testimony of PW1 the appellant had deled her more than once. She was aged eight years. She could not have failed to know the perpetrator and more so because he was not a stranger but a neighbour who she had known before. It is trite law that recognition is better than identication. Looking (at the) testimony of PW1 she informed her mother and her teacher (PW5) that the person who deled her was Njiru Fundi. The appellant was called Fundi as he was a carpenter. PW2 corroborated the testimony of the complainant that the appellant is called Fundi. What the court has to consider is whether there is doubt on the identity of the perpetrator.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1858/eng@2026-09-25 6

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20. The court then considered the judgment of the trial court and its analysis of the evidence, then made its observations thereon: “ “ 7. The trial Magistrate at page 34 of the record lines 12 -16 stated·' “ I have considered the evidence of PW 1 the complainant who appeared to me truthful and could recall what the accused had done to her. It is also apparent from her evidence that it was not the rst time the accused called her into his house, even though she could not recall the dates, which I nd reasonably excusable taking her age into consideration." When evaluating the evidence, the appellate court leaves room for the fact that it did not have the advantage to see the witnesses and assess the demeanor. The trial Magistrate found that PW1 was truthful. Having found that PW1 was truthful, the trial Magistrate was right in relying on her testimony to conclude that the appellant was the perpetrator. The proviso to Section 124 of the Evidence Act allows the court to rely on the testimony of the victim to convict if for reasons to be recorded the court is satised that witness was truthful.” 21. We have considered the decision of the rst appellate court, a sample of its analysis with respect to essential elements of the case being as set out above. We are satised that the rst appellate court properly exercised its mandate to appraise the evidence before the trial court and reach its own independent decision. The ndings of the trial court and the rst appellate court with respect to the elements of the oence of delement cannot be faulted, and we nd no merit in the rst two issues identied above. 22. The nal issue for determination is whether this Court should interfere with the sentence meted out on the appellant. We bear in mind that severity of sentence is a matter of fact, but legality of a sentence, and its constitutionality, which is what the appellant raises before us, is a matter of law. 23. The appellant submits that the sentence was mandatory and unconstitutional, and invites this Court to interfere with it in light of the jurisprudence on mandatory sentences. Section 8(2) of the Sexual Offences Act provides that a person who commits the oence of delement against a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life. Having been found guilty of the oence of delement of a child of 8 years, the only sentence available to the court was that prescribed under section 8(2) of the Sexual Offences Act. 24. Any doubt regarding the constitutionality of the mandatory sentences under the Sexual Offences Act was laid to rest by the Supreme Court in its decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR). In the decision, the Supreme Court held that sentences prescribed under section 8 were constitutional. The sentence of life imprisonment meted out by the trial court against the appellant in this case was a lawful sentence prescribed by the law applicable to the oence. Accordingly, we must determine the third issue before us in the negative. 25. The result of our ndings above is that the appellant’s appeal must fail, and it is dismissed in its entirety. The conviction and sentence are hereby upheld. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1858/eng@2026-09-25 7

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S. ole KANTAI ............................................. JUDGE OF APPEAL MUMBI NGUGI ............................................. JUDGE OF APPEAL KATWA KIGEN K.J. ............................................. 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/2026/1858/eng@2026-09-25 8

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