Haron Juma v Republic

she felt pain when he put his ‘dudu’ in the place she uses to urinate. She added that she was taken to hospital by her grandmother and was treated. 5. PW3, Salina Sasilia, stated that she was a neighbour of the complainant and knew the appellant as a herd’s boy in the neighbourhood. She testied that she saw the appellant lying on top of the complainant shaking his body over her. She added that she fetched PW1 and they ran to the scene. They observed the child and saw a watery discharge from her private parts. PW1 screamed and the appellant started moving away. Members of the public arrived at the scene and apprehended the appellant. Under cross examination, the witness said she saw the appellant commit the oence and both the child and the appellant were well known to her. She conrmed that she had no reason to fabricate the oence against the appellant since he was not her employee. 6. PW4, Dr. Tare Yatich of Moi Teaching and Referral Hospital, produced the P3 form lled by his former colleague, Dr. Cynthia Kibet, which conrmed fresh hymenal tears and redness on the perineum, of the complainant consistent with sexual assault. The child had a smelly vaginal discharge but she tested negative for HIV and Syphilis and no sperms were seen upon conduct of a vaginal swab although there were pus cells. 7. PW5, Fancie Jerop Chebiche, testied that she heard screams, rushed to the scene, and saw the appellant adjusting his trousers while the child’s undergarments were displaced and seminal uid was visible on her thighs. 8. PW6, Sabina Simatei, the grandmother of the complainant, conrmed that the appellant was her employee and produced the child’s birth certicate establishing her age as ve years. PW7, Police Constable Samuel Gachuha, the investigating ocer, testied that members of the public brought the appellant and the child to Moiben Police Station, that he recorded statements, issued a P3 form, and produced exhibits including the child’s clothing. He conrmed that the medical evidence supported the charge. 9. The trial magistrate, having heard the evidence of the prosecution witnesses and the defence, proceeded to evaluate the issues for determination. The court rst addressed whether the complainant had been subjected to penetration. Relying on PW1’s observations, PW2’s unsworn testimony, PW3’s direct account, and PW4’s medical ndings of hymenal tears, the magistrate found that penetration had occurred. On the second issue, namely who was responsible, the court held that the evidence consistently pointed to the appellant, who was positively identied by PW3 and PW5, and apprehended by members of the public. The trial magistrate found the chain of evidence unbroken and corroborated by medical testimony. The learned magistrate further found the age of the child was armatively established to be ve years upon production of the birth certicate by her grandmother. 11. Turning to the defence, the appellant alleged fabrication of the case due to a wage dispute and claimed that the complainant’s grandmother was mentally unstable. The court dismissed this defence as a sham, noting that the appellant had not called any witness to support his allegations, nor lodged any complaint of unpaid wages. The trial magistrate held that the defence did not displace the prosecution’s case, which was corroborated by both medical and eyewitness testimony. 12. The court concluded that the prosecution had proved its case beyond reasonable doubt. The age of the complainant having been established at ve years by the birth certicate, and the law being clear that a minor cannot consent to sexual activity, the court found the appellant guilty of delement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The defence was rejected in its entirety, and the appellant was convicted accordingly. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1931/eng@2026-09-25 2

page 2 of 8

11. Being aggrieved by the decision of the trial court, the appellant appealed to the High Court vide a memorandum of appeal dated 2013. 12. The superior court heard the appeal, conrmed the conviction and sentence of life imprisonment under Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The appeal was therefore found to lack merit and was dismissed in its entirety, with the conviction and sentence of the trial court upheld. 13. The appellant was unsettled by the two courts’ ndings and is now before this Court for a third nding. Vide a notice of appeal lodged on 23rd November, 2017, the appellant indicated his intention to appeal against conviction and sentence. 14. In the memorandum of appeal led alongside the written submissions dated 10th June, 2026, the appellant contends that the learned Judge of the High Court erred in law by holding that the prosecution had established sucient evidence to sustain a conviction; failed to evaluate the totality of the evidence, law and facts as mandated under section 362 of the Criminal Procedure Code and section 329 of the Evidence Act; relied on testimony of prosecution witnesses who were malicious and actuated by improper motive; disregarded the defence and mitigation contrary to the constitutional guarantees of a fair trial under Article 50 and the statutory provisions of sections 216 and 329 of the Criminal Procedure Code; and ultimately imposed a sentence that was unfair, unconstitutional and unjustied in the circumstances. 11. In his detailed submissions dated 10th June 2026, the appellant submits that his case was not proved beyond reasonable doubt as required by law. He contends that the prosecution witnesses were malicious and motivated by improper intent, alleging that when he demanded remuneration exceeding one hundred thousand shillings, they framed him in a perilous case. He emphasizes his good character and long service, arguing that he could not possibly have deled a minor of tender years. The appellant further submits that many persons have been maliciously convicted under the Sexual Offences Act, which he claims is misused to punish innocent men, even with the assistance of medical personnel who allegedly ll fraudulent P3 forms. He relies on Hamisi Bakari & Another vs Republic (1987) eKLR, where the court found insucient evidence to sustain a conviction, and urges the court to adopt similar reasoning. He also cites Kimani Ndung’u vs Republic (1979) 1 KLR, where the court commented on witness credibility and warned against reliance on unreliable testimony, arguing that hearsay evidence was used against him. He invokes R vs Summers (1947) All ER 372 to stress that the burden of proof in criminal proceedings is very high because liberty is at stake. 11. The appellant submits that the learned Judge erred by failing to consider character evidence, which is relevant both to credibility and propensity, as stated by Lord Taylor (CJ) in R vs Vye (1993) 1 WLR 471. He further argues that section 124 of the Evidence Act requires corroboration of a child’s unsworn testimony, citing David Otieno Alex vs Republic, HCCRA No. 44 of 2015, where the court held that such testimony required corroboration to support a conviction. 11. On the issue of evaluation of evidence, the appellant submits that the High Court failed to re-evaluate the entire record as required under section 362 of the Criminal Procedure Code and section 329 of the Evidence Act, citing Okeno vs Republic (1972) EA 32. He argues that this failure amounted to an unfair trial under Articles 25(c) and 50 of the Constitution. He relies on Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3 Others (2014) eKLR, where the Supreme Court claried matters of law in a second appeal, and submits that the High Court failed on the evidentiary element. He also cites Francis Muniu Kariuki (2017) eKLR, where medical evidence raised doubts about guilt, and Victor Mwendwa https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1931/eng@2026-09-25 3

page 3 of 8

Mulinge vs Republic, Criminal Appeal No. 357 of 2012, where the Court of Appeal held that the prosecution failed to rebut the defence, rendering the conviction unsafe. The appellant submits that he was prejudiced at the rst appeal, citing Condron vs UK (2000) Crim LR 679, where the European Court of Human Rights stressed that fairness of trial is paramount, and R vs Togher (2001), where Lord Woolf (CJ) held that denial of a fair trial renders a conviction unsafe. 11. On mitigation, the appellant submits that he was a family man and a rst oender, yet his mitigation was disregarded. He cites John Njue Nguta vs Republic, Criminal Appeal No. 55 of 2014, where the Court of Appeal remitted a case for mitigation and resentencing, arguing that similar consideration should have been given in his case. 11. Lastly, the appellant submits that the life sentence imposed was harsh, unconstitutional, and unjustied. He argues that mandatory sentences under the Sexual Offences Act deprive courts of discretion and violate constitutional rights under Articles 25(c), 27, 28, 47, 50, and 159(2)(e). He cites J. O. O. vs Republic, HCCRA No. 14 of 2014 eKLR, where “liable” was held not to make life imprisonment mandatory. He also relies on Vinter & Others vs UK (2016), where the European Court of Human Rights declared life sentences inhuman, and DPP of Jamaica vs Mollison (2003) 2 AC 411, where the Privy Council stressed that mandatory sentences oend separation of powers. He submits that his sentence was unjust and unconstitutional. 11. The appellant further invokes emerging jurisprudence where convictions were quashed or sentences reduced including: Joseph K. Mumbi vs Republic, HCCRA No. E011/2023; Barris Billow vs Republic, HCCRA No. E01/2023; Mdata Mwanongo Mangale vs Republic, HCCRA No. E003/2023; Freelance Mutua Musya vs Republic, HCCRA No. 13/2023; Francis Matonda Ogeto vs Republic (2019) eKLR; Evans Wanjala Wanyonyi vs Republic (2019) eKLR; Philip Mueke Maingi vs Republic, Criminal Appeal No. 46 of 2020; and Benjamin Kahindi Changawa & Another vs Republic, Criminal Appeal No. 99 of 2019, where sentences were reduced in light of Francis Karioko Muruatetu vs Republic (2016) eKLR. He submits that his case similarly warrants interference with sentence. 11. In conclusion, the appellant submits that he has been of good conduct in prison, serving as a kitchen cleaner, and at 64 years of age he is rehabilitated and an older member of society under Article 260 of the Constitution. He prays that the conviction be quashed, the sentence set aside, and that he be set at liberty. 12. The appeal is opposed. In her detailed written submissions dated 14th June 2026, Ms. Claire Muriithi, Principal Prosecution Counsel opposed the appeal and submitted that both the conviction and sentence were proper. 13. She began by restating the background and proceeded on the main issues. On whether the prosecution proved its case beyond reasonable doubt, counsel submitted that the oence of delement rests on three ingredients: age of the victim,penetration, and identication of the perpetrator. The age was proved by the complainant’s birth certicate produced as Pexh 2, showing she was ve years old. She cited Edwin Nyambogo Onsongo vs Republic (2016) eKLR, where this Court held that age can be proved by credible documents such as a birth certicate, baptism card, or oral evidence. Penetration was proved by PW2’s testimony that the appellant did “tabia mbaya” to her, laid her on the grass, and caused her pain. PW3 corroborated this by observing the appellant shaking his body with PW2 beneath him, while PW4, a medical ocer, produced the P3 form showing redness on the perineum and fresh hymenal tears. PW5 and PW6 further corroborated by observing the child’s dirty clothes and inner pant produced as Pexh 3. Identication was established through PW3 and PW5, who saw https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1931/eng@2026-09-25 4

page 4 of 8

the appellant at the scene with PW2, and who knew him well as a neighbour. Counsel submitted that these three ingredients were suciently proved. 11. On whether the prosecution was driven by ill motive, counsel submitted that the appellant alleged fabrication due to salary disputes with PW6. However, the trial court dismissed this claim as baseless, stating that the allegation of fabrication was “all but a sham.” She emphasized that under section 107 of the Evidence Act, the burden of proof lay on the appellant to prove the alleged frame-up, which he failed to discharge. She cited Joseph Kiptum Keter vs Republic [2007] KECA 390 (KLR), where the Court of Appeal held that credibility of witnesses is a matter for the trial court, which observes demeanor and applies judicial discretion. Counsel submitted that the trial court found the witnesses credible and reliable, and the two courts below rightly rejected the appellant’s claim of ill motive. 11. On whether the appellant’s defence was considered, counsel submitted that both the trial court and the High Court evaluated the defence and found it to be a mere denial that did not cast doubt on the prosecution’s case. The trial court held that the defence did not shake the prosecution’s evidence, and the High Court concluded that it was a mere denial. 12. On whether the learned Judge properly evaluated the evidence, counsel submitted that there is no evidence to show otherwise. The High Court carefully evaluated the record, appreciated the law, and concluded that the prosecution had discharged its burden. Lastly, as to whether the sentence was proper, counsel submitted that the complainant’s age fell within the statutory bracket of 0 - 11 years, which attracts a mandatory life sentence under section 8(2) of the Sexual Offences Act. She cited Republic vs Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR), where the Supreme Court upheld the constitutionality of mandatory sentences and held that the Court of Appeal has no jurisdiction to substitute life imprisonment with a lesser term. Counsel therefore submitted that the sentence imposed was lawful and proper, and this Court lacks jurisdiction to interfere with it. 11. In conclusion, Ms. Muriithi submitted that the prosecution discharged its burden, the defence was a mere denial, and the judgments of the trial court and the High Court were proper. She prayed that the appeal be dismissed for lack of merit. 12. This is a second appeal and our duty is well stated in the case of Boniface Kamande & 2 Others vs Republic, Criminal Appeal No. 166 of 2004, where this Court emphatically expressed itself thus: “ On a second appeal to the Court, which is what the appeals before us are, we are under legal duty to pay proper homage to the concurrent ndings of facts by the two courts below and we would only be entitled to interfere if and only if, we were satised that there was no evidence at all upon which such ndings were based or if there was evidence, that it was of such a nature that no reasonable tribunal could be expected to base any decision on it.” Earlier in M’Riungu vs Republic (1983) KLR 455 the Court had strongly expressed the same view in these terms: “ Where a right of appeal is conned to question of law, an appellate court has loyalty to accept the ndings of fact of the lower court(s) and resist the temptation to treat ndings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the rst appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”. 11. Having considered the record, the submissions and the law, the issues we postulate for determination are; whether the prosecution proved the elements of delement against the appellant beyond https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1931/eng@2026-09-25 5

page 5 of 8

reasonable doubt, taking into account the appellant’s defence and whether the sentence imposed upon the appellant was lawful, constitutional and justied in the circumstances. 12. The oence of delement under section 8(1) as read with section 8(2) of the Sexual Offences Act requires proof of three essential ingredients: the age of the complainant, penetration, and identication of the perpetrator. As to whether the prosecution proved the oence of delement beyond reasonable doubt, the law provides that in criminal cases the burden of proof rests upon the prosecution and must be discharged beyond reasonable doubt, as established in Woolmington vs DPP [1935] AC 462 and consistently applied in our jurisdiction. In the case of Kaingu Kasomo vs Republic [2014] eKLR, the Court held that proof of delement requires demonstration of three elements: the age of the complainant, penetration, and identity of the perpetrator. Similarly, in Fappyton Mutuku Ngui vs Republic [2012] eKLR, the Court emphasized that medical evidence, coupled with credible testimony, is sucient to establish penetration. The complaint by the appellant is that the evidence tendered was riddled with inconsistencies, that the complainant’s age was not conclusively proved, and that the medical evidence did not conrm penetration beyond reasonable doubt. 11. This Court is of the considered nding, however, that the complainant’s age was proved through documentary evidence, penetration was conrmed by medical examination, and the appellant was positively identied by the complainant and corroborated by other witnesses. In the case of Mwalongo Chichoro Mwanjembe vs Republic, Msa Criminal Appeal No. 24 of 2015 (UR) the Court addressed at length the issue of age of complainants in delement cases thus: “…the question of proof of age has nally been settled by recent decisions of this Court to the eect that it can be proved by documentary evidence such as a birth certicate, baptism card or by oral evidence of the child if the child is suciently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa vs R, Criminal Appeal No. 19 of 2014 and Omar Uche vs R, Criminal Appeal No. 11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct inuence by the decision of the Court of Appeal of Uganda in Francis Omuroni vs Uganda, Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable…” 11. From the record, the complainant’s age was proved by PW1, the complainant’s mother, who produced the birth certicate in evidence. This documentary proof was accepted by both the trial court and the rst appellate court as credible and reliable, and we nd the same consistent with the principles laid down in Mwalongo Chichoro Mwanjembe vs Republic (supra). 11. As to the element of penetration, the law provides under Section 2 of the Sexual Offences Act that penetration means the partial or complete insertion of the genital organs of one person into the genital organs of another. In the current case, the record shows that PW4, the doctor, produced the P3 form and treatment notes, which conrmed that the complainant’s genitalia had injuries consistent with penetration. This medical evidence was corroborated by the complainant’s testimony, which was found credible by the trial court. Based on the law and the facts, it is clear that penetration was proved to the required standard. We are of the nding that the element of penetration was satisfactorily established. 12. As to whether the appellant was identied, the law provides that in criminal trials, identication of the accused must be free from error and must meet the threshold of proof beyond reasonable doubt. In https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1931/eng@2026-09-25 6

page 6 of 8

Wamunga vs Republic [1989] KLR 424, the Court cautioned that evidence of visual identication, especially under dicult circumstances, must be carefully tested to avoid miscarriage of justice. Similarly, in Anjononi & Others vs Republic [1980] KLR 59, the Court held that recognition is more reliable than identication of a stranger, though even recognition must be approached with caution. In the current case, the complainant gave direct testimony identifying the appellant as the perpetrator. The record shows that the complainant knew the appellant prior to the incident, and her testimony was consistent and unwavering. This identication was corroborated by other prosecution witnesses who placed the appellant at the scene, thereby strengthening the reliability of the complainant’s account. Unlike in Wamunga (supra), where the Court warned against reliance on untested visual identication, here the circumstances were favourable, and the recognition evidence was credible. 11. We are therefore satised that the prosecution discharged its evidentiary burden to the requisite threshold of proof beyond reasonable doubt. We are thus compelled to arm the concurrent factual ndings of both the trial court and the rst appellate court, that the constituent elements of the oence of delement were duly established. The complainant’s age was credibly demonstrated through reliable documentary evidence, the fact of penetration was conclusively attested by medical examination and corroborated by consistent testimonial evidence, and the appellant’s identity was positively and unequivocally proved by the complainant and supporting witnesses. In sum, the evidentiary substratum was cogent, credible, and unimpeachable, thereby proving the oence of delement to the required legal standards. 11. Regarding whether the appellant’s defence and allegations of ill motive were properly considered, under Article 50(2)(c) of the Constitution an accused person has the right to adduce and challenge evidence. In the current case, the record shows that the appellant alleged malice and improper motive on the part of prosecution witnesses. However, both the trial and rst appellate courts considered these allegations and found them unsubstantiated, noting that the witnesses were consistent and credible. We nd that the appellant’s defence and allegations of ill motive were duly considered and properly discounted. We have therefore reached the conclusion that the defence did not raise reasonable doubt against the prosecution case. 12. The last issue is whether the sentence imposed was lawful, constitutional and justied. The appellant upon being convicted for delement under section 8(1) as read with 8(2) of the Sexual Offences Act was sentenced to life imprisonment which is the set mandatory sentence for the oence under the Act. 13. 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), claried the distinction between mandatory and minimum sentences in the following terms: “ Mandatory sentences left the trial court with absolutely no discretion such that upon conviction, the singular sentence was already prescribed by law. Minimum sentences however set the oor rather than the ceiling with regards to sentences. What was prescribed was the least severe sentence a court could issue, leaving it open to the discretion of the courts to impose a harsher sentence. The judgment of the Court of Appeal delivered on October 7, 2022 was one for setting aside. In any case, the sentence imposed by the trial court against the respondent and armed by the rst appellate court was lawful and remained lawful as long as Section 8 of the Sexual Offences Act remained valid. The Court of Appeal had no jurisdiction to interfere with that sentence.” 11. Taking into account the mandatory sentence set by the law where a person is convicted of deling a child of 11 years and below, it is our considered nding that the life sentence meted on the appellant https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1931/eng@2026-09-25 7

page 7 of 8

was lawful and not excessive. Accordingly, we arm the conviction and sentence by the trial and rst appellate courts and dismiss the appeal. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. JAMILA MOHAMMED JUDGE OF APPEAL .................................... NDUMA NDERI JUDGE OF APPEAL .................................... L. M. NDOLO 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/2026/1931/eng@2026-09-25 8

page 8 of 8