Mwenda v Republic (Criminal Appeal E038 of 2024) [2025] KEHC 6327 (KLR) (Crim) (21 May 2025) (Judgment) Neutral citation: [2025] KEHC 6327 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYANDARUA CRIMINAL CRIMINAL APPEAL E038 OF 2024 KW KIARIE, J MAY 21, 2025 BETWEEN PATRICK MUTHURI MWENDA ......................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT JUDGMENT 1. Patrick Muthuri Mwenda, the appellant herein, was convicted of the ofience of defilement of a girl contrary to section 8 (4) of the Sexual Offences Act No. 3 of 2006. 2. The particulars of the ofience were that on diverse dates between the 18th day of April 2021and the 14th day of October 2021, at [particulars withheld] village, Kinangop subcounty, within Nyandarua County, intentionally caused his penis to penetrate the vagina of C.G.N., a child aged sixteen years. 3. The appellant was represented by Waicigo Kamau advocate. He raised the following grounds of appeal: a. The learned trial magistrate erred in law by failing to take notice that falsehoods characterised the complainants’ statements. b. The trial magistrate misdirected herself by holding that the charge had been proved beyond a reasonable doubt, yet there was no documentation from the Teachers Service Commission afirming the appellant's existence or duties and responsibilities, thus arriving at the wrong decision. c. The trial court misdirected itself by failing to appreciate that the prosecution had not adhered to the law in preferring charges, as the charges were an outright usurpation of Article 47 of the Constitution, the Teachers Service Commission Act. Hence, the court arrived at the wrong decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/6327/eng@2025-05-21 1
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d. The learned trial magistrate erred in law and fact by failing to appreciate the scarcity of medical evidence, especially on treatment and medical examination of the complaint, hence arriving at the wrong decision. e. The trial magistrate misdirected herself by failing to appreciate that the case was marred by inconsistencies that were prejudicial to the prosecution's case, hence arriving at the wrong decision. f. The trial magistrate ignored the appellant's written submission and the cited authorities, arriving at the wrong decision. g. The learned trial magistrate erred in law by failing to notice that there was no Teacher on Duty Occurrence book afirming that the incident occurred and no school Log book afirming that the incident occurred, hence arriving at the wrong decision. h. The trial magistrate erred in law and fact by failing to appreciate that there was no evidence of the appellant having visited the crime scene on the alleged date of the ofience, hence arriving at the wrong decision. i. The learned trial magistrate erred in law and fact by failing to exercise her discretion and placing the accused/appellant to his defence, hence arriving at the wrong decision. 4. The state opposed the appeal through Vena Odero, learned counsel. 5. This appeal is an abuse of the due process of the law. This matter is still pending at the trial court. It was held in abeyance owing to the High Court Judicial Review No. E001 of 2023. The application was dismissed on the 2nd day of April 2025. The defence of the accused has yet to be taken, and a judgment has not been rendered. 6. The appeal is struck out, and the original file is ordered to be returned to the Magistrate’s Court at Engineer for the hearing of the case to its logical conclusion. DELIVERED AND SIGNED AT NYANDARUA THIS 21ST DAY OF MAY 2025 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/6327/eng@2025-05-21 2
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