SMN v Republic

3. BN (PW2), the complainant’s mother, testied that she was separated from the appellant, and on 5th November 2011, the appellant took DN to buy her kaa ngumu and did not return her that night. The next morning, the child returned dirty, was washed by her elder sister (PW3), who reported that her father had deled her. BN checked the child, noticed a watery substance, and took her to Ekerenyo District Hospital and Nyamira Hospital where a P3 form was lled out. PW1’s older sister, AM (PW3), gave sworn testimony that she was 12 years and that the appellant was their father and lived at his home on Siekemu in [Particulars Withheld] area, while they lived with their mother, having left their father’s home in 2011. She recalled that on 5th November 2011 at 5. 00 p.m. the appellant then told PW1 to go with him so that he could buy her kaa ngumu which she did. PW1 came back the following day alone and told PW3 that the appellant had raped her. PW3 then bathed PW1, and saw something on her panty that looked like mucus. 4. Doctor Lilian Bosire testied as PW4, and stated that she knew doctor Dr. Ondondi having worked with him in Nyamira District hospital for 1 year, was familiar with his hand writing and signature, produced a P3 form on his behalf as he was as on leave and conrmed that the signature on the P3 form was his. The appellant did not object to Dr. Bosire producing the P3 form. PW4’s testimony was that the P3 form lled by Dr. Ondundi was for PW1 who was 6 years and seen on 7th November 2011, having been referred from DCIO, Nyamira and who was escorted by PW2. On physical examination of her genitalia, PW1 had pain in her, there was bruising on the labia majora, labia minora perianal bruising and a slight tear on the anal opening. There was white mucual discharge in the anus and vaginal canal. No laboratory tests were done and there was no disease indicated on the P3 form. PW4 produced the P3 as an exhibit. 5. In his defence, the appellant, who testied as DW1 conrmed that he knew the complainant as his daughter, and that he was at his home on 6th November 2011 when he was arrested, and he was not told anything. Further that he was charged with an oence he did not know about, and that his problem was with his wife who was bringing men to his home where he lived with his biological mother. He asked the Court to consider his case and reiterated that he loved all his children. 6. The trial Court found that the elements of delement had been proved, and in his rst appeal to the High Court, the appellant challenged his conviction and sentence, contesting the credibility and consistency of the prosecution witnesses' testimony (including PW1 and PW2), the medical evidence, and alleging failure to prove the charge of delement beyond reasonable doubt. The High Court reevaluated the evidence and found that the prosecution proved penetration and the identity of the oender beyond reasonable doubt through the consistent testimony of the minor victim, supported by her prompt report and medical ndings. The High Court accordingly dismissed the appeal and upheld both the conviction and the sentence passed by the trial Court. 7. In his second appeal, the appellant has set out four (4) grounds of appeal in his Memorandum of Appeal dated 28th February 2025, namely: 1. The two lower courts erred in law in not making a nding that genital penetration of the Complainant by the Appellant was not proved beyond reasonable doubt pursuant to section 2 of the Sexual Offences Act No. 3 of 2006. Hence not a case of delement. 2. The two courts erred in law by convicting the Appellant herein relying on prosecution evidence that had not been investigated and had no probative value since it did not meet the threshold of evidence, since its investigator https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1939/eng@2026-09-25 2

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did not take oath and was not cross examined to vary the same. Hence no investigation and unfair hearing. 3. The two Courts erred in law and in fact in not appreciating the Appellant’s defence that was not dislodged and overwhelmed the prosecution case. 4. The two courts erred in law in not making a nding that the indeterminate life sentence under section 8 (2) of the Sexual Offences Act No. 3 of 2006 is unconstitutional and that its discretional as per the legislature stating “not expressly stated to be minimum of maximum. Not dened (sic)” 8. We heard the appeal on the Court’s virtual platform on 4th September 2025 and the appellant was present, appearing virtually from Kisumu Maximum prison. Learned Principal Prosecution Counsel, Mr. Mwangi, who was holding brief for learned Prosecution Counsel, Ms. Vane Mochama, appeared for the respondent. The appellant and learned counsel relied on their respective submissions dated 28th February 2025 and 4th June 2025 . 9. As this is a second appeal, the role of this Court was set out in Karani vs R (2010) 1 KLR 73 as follows: “ This is a second appeal. By dint of the provision of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with decision of the superior Court on fact unless it is demonstrated that the trial court and the rst appellate Court considered matters, they ought not to have considered or that they failed to consider matter they should have considered or that looking at the evidence as a whole they were plainly wrong decision, in which case such omission or commission would be treated as a matter of law.” It was further explained in Njoroge vs Republic [1982] KLR 388 and Kaingo vs Republic [1982] KLR 213, that on a second appeal, this Court will not interfere with concurrent ndings of fact unless those ndings are unsupported by the evidence on record. 10. The appellant’s case is along two strands. Firstly, that his conviction that was not supported by evidence that meets the threshold of proof beyond reasonable doubt, for reasons that penetration was not proved, the evidence had no probative value for lack of investigation, and his defence displaced the evidence. Secondly that the sentence imposed upon him was unconstitutional. It was in this regard held by this Court in David Njoroge Macharia vs Republic [2011] eKLR, that whether a conviction is supported by evidence is, in certain circumstances, a question of law, particularly where the complaint concerns whether the evidence on record meets the legal threshold required to sustain conviction and whether it proved all the essential ingredients of the criminal charge beyond reasonable doubt. 11. As regards proof of the charge, the appellant’s main arguments were that there was failure to prove penetration beyond reasonable doubt for reasons that the victim (PW1) could not identify or describe what caused the penetration, stating she did not see what was used; the medical evidence was inadequate for reasons that the white mucus found was not forensically tested for spermatozoa, and no DNA test was conducted to link the appellant to the crime, and while citing the decision in Mwangi vs Republic (1984) KLR 595, that the presence of spermatozoa alone is not conclusive proof of sexual intercourse. Further, that there was failure to call the Investigating Ocer who did not testify under oath or undergo cross-examination, and the prosecution's evidence was therefore unveried, creating gaps in the case and depriving the appellant of a fair trial. 12. The decisions in T. Bhatt vs Republic (1957) E.A. 332 and Sawe vs Republic (2003) were in this regard cited for the positions that it is not the role of the court to ll gaps in the prosecution's case, and that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1939/eng@2026-09-25 3

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suspicion, no matter how strong, cannot form the basis of inferring guilt, and Koome vs Republic (2005) KLR for the position that a retrial should not be ordered when a conviction is set aside due to insuciency of prosecution evidence or to allow the prosecution to ll gaps. Lastly, that the trial Court and High Court failed to evaluate or dislodge the appellant's defence, including claims that he suered from erectile dysfunction, that he was framed due to a marital grudge, and that he was HIV positive while the victim was not. 13. Counsel for the respondent on his part submitted that penetration was proved beyond a reasonable doubt. In particular, that under section 2 of the Sexual Offences Act, "genital organs" includes the anus and the medical evidence showing marks around the anus and the presence of spermatozoa supported forced penetration. Further, that the failure to call the investigating ocer did not prejudice the appellant or lead to an unfair trial, as the testimony from the victim and other witnesses (PW1, PW2, PW3) was direct, overwhelming, and sucient. 14. Reliance was in this respect placed on the decision in Guantai vs Republic (2022) KECA 1261 (KLR) where this Court, while citing Simiyu vs Republic (2021) eKLR, held that the failure to call an investigating ocer does not occasion a miscarriage of justice where direct witness evidence suciently establishes the case. Lastly, that the appellant’s claims regarding erectile dysfunction and HIV status are unproved new evidence introduced at the second appeal stage without medical backing from the trial court. Furthermore, post-exposure prophylaxis (PEP) administered within 72 hours prevented HIV transmission to the complainant. 15. The essential elements of delement as emphasized by this Court in John Mutua Munyoki vs Republic, [2017] eKLR are penetration, including identication of the perpetrator and proof of age of the victim. Regarding proof of age, this Court in the case of Justin Kubasu vs Republic [2020] eKLR held that age can be proved by documents such as a birth certicate or baptism card, or by oral evidence of the child if the child is suciently intelligent, evidence of the parents or guardian, or by medical evidence. In the present appeal, the age of the complainant was proved by the evidence of the mother (PW2) who stated that the minor was six years old, and by the sister (PW3) who stated that she was ve years old. It was also evident that the trial Court observed the complainant and noted that she was very young and found her to be six years of age, and therefore below the age of 11 years. 16. Penetration is dened under Section 2 of the Sexual Offences Act as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”, while a genital organ is dened to include the whole or part of male or female genital organs and includes the anus. The complainant gave a detailed account of the sexual act and how it occurred, and that the appellant did bad things to her from the back in her anus and she felt pain. This evidence was corroborated by medical evidence showing the complainant had anal and vaginal tears, bruising and discharge. The appellant was identied by various witnesses being PW1 and PW3 who saw the appellant take away the complainant, and by the complainant who described how the appellant took her to his house where he raped her during the night. The appellant was previously known to all the witnesses, being PW1’s and PW3’s father, and PW2’s husband. 17. On the legal eect of failure to call the investigating ocer, section 143 of the Evidence Act stipulates that no particular number of witnesses shall be required for purposes of proof of any fact. What the law therefore requires is that the prosecution calls sucient witnesses to prove the charge beyond reasonable doubt. It was accordingly explained by this Court in Mathenge vs Republic [2026] KECA 1643 (KLR) as follows: “ 69. The governing principle was stated in Bukenya & Others v Uganda [1972] EA 549, where the former East African Court of Appeal held that while the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1939/eng@2026-09-25 4

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prosecution need not call a superuity of witnesses, it must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. The Court further stated that where essential witnesses are not called, and the evidence adduced appears barely adequate, the court may draw an adverse inference that the uncalled evidence would have been adverse to the prosecution. 70.We are alive to the caution that Bukenya does not create an automatic rule that failure to call a particular witness is fatal. The question is always contextual: whether the missing witness was necessary to prove a material ingredient of the charge...” 18. The Court was persuaded in that appeal that the Investigating Ocer was the witness best positioned to connect the evidentiary gaps. In the present appeal there were no such gaps that needed to be lled as regards the proof of delement. As we have stated, penetration and the identication of the appellant as the perpetrator, as well as the age of the victim were suciently proved by the four witnesses called by the prosecution, and there was no evidentiary vacuum that needed to be lled by the Investigating Ocer or by further investigations, nor would they have added any value to the prosecution’s case. 19. We accordingly nd that the oence of delement was proved beyond reasonable doubt, and we in this regard note that the arguments the appellant has raised as regards lack of forensic tests on the spermatozoa found on the complainant, or of DNA tests did not water down the evidence, as these aspects are not essential elements in the proof of delement. This Court observed in the case of Robert Mutungi Mumbi vs Republic [2015] eKLR, that while section 36(1) of the Act empowers the court to direct a person charged with an oence under the Act to provide samples for tests, including DNA testing, to establish linkage between the accused person and the oence, it is not mandatory and DNA evidence is not the only form of evidence by which the commission of a sexual oence may be proved. The absence of forensic or DNA evidence will therefore not vitiate the prosecution case or render a conviction unsafe. It is also notable in this respect that the appellant’s defence was a mere denial, and did not dislodge the evidence that placed him with the victim on the material time, nor the evidence of penetration. 20. On the second issue raised by the appellant being the unconstitutionality of an indeterminate life sentence, he submitted that section 8(2) of the Sexual Offences Act does not dene life imprisonment as a xed minimum or maximum, indeterminate life sentences are unconstitutional, and trial courts retain discretion to impose a xed term of years. The appellant in this respect cited the decision of this Court in Evans Nyamari Ayako vs Republic, Kisumu Crim. App. No. 22 of 2018 that the indeterminate nature of life imprisonment contravenes Article 27 of the Constitution of Kenya, 2010. In reply, the respondent’s counsel submitted that the life sentence under section 8(2) of the Sexual Offences Act remains valid and constitutional, and that courts retain discretion to impose life imprisonment in appropriate cases. Counsel cited the decision by this Court in Elemon vs Republic [2023] KECA 734 (KLR) which claried that while mandatory minimum sentences were declared unconstitutional in the Muruatetu Case, life imprisonment itself remains legal and appropriate for courts to impose depending on the circumstances. 21. Life imprisonment is provided for in section 8(2) of the Sexual Offences Act as the minimum sentence for the oence of delement of a child aged eleven years and less, and the said sentence is therefore not illegal. The Supreme Court of Kenya claried in Francis Karioko Muruatetu & Another vs. Republic; Katiba Institute & 5 others Amicus Curiae) [2021] eKLR and reiterated in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (supra) that it did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute, and they remain constitutional. The Supreme Court further armed the validity of life https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1939/eng@2026-09-25 5

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imprisonment as a lawful punishment in Republic vs Manyeso [2025] KESC 16 (KLR), and held that setting the duration of a life sentence falls under legislative power, and courts cannot amend statutes to dene it as a xed term, and the decision in the Muruatetu Case could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution. 22. While the Supreme Court appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial ocer, it was also explicit that it was not for the court to dene what constituted a life sentence and made the recommendations to the Attorney General to develop legislation on what constitutes a life sentence. Consequently, life imprisonment sentence remains lawful and in line with section 8 of the Sexual Offences Act. Lastly, it is notable that the decision relied upon by the appellant was overturned by the Supreme Court of Kenya for the same reasons in its decision in Republic vs Ayako [2025] KESC 20 (KLR). The Supreme Court held that although a life sentence should not necessarily encompass a prisoner's natural life, the duty to dene the specic parameters of "life imprisonment" rested solely with Parliament under Article 51(3) of the Constitution and that the Court of Appeal had exceeded its mandate by arbitrarily substituting a life sentence with a xed term of thirty years and lacked the authority to expand the Supreme Court’s limited ratio decidendi in the Muruatetu Case 23. We therefore have no jurisdiction to set aside or interfere with the sentence imposed on the appellant in light of the above-cited decisions by the Supreme Court, and can only observe that the appellant awaits a change in the law in this regard. For these reasons, we uphold both the conviction of the appellant for the oence of delement contrary to section 8 (1) and (2) of the Sexual Offences Act, and the sentence of life imprisonment. This appeal is accordingly dismissed in its entirety. 24. Orders accordingly. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026 P. NYAMWEYA ................. JUDGE OF APPEAL L. ACHODE ................. JUDGE OF APPEAL J. MATIVO ................. JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1939/eng@2026-09-25 6

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