Felix Musembi Mulwa v Republic

petition of appeal filed in court on 21st July 2023. In his grounds of appeal, the appellant complained as follows: i. The learned trial magistrate erred in both fact and law by convicting the appellant on evidence that didn’t meet the minimum threshold to uphold a conviction; ii. The learned trial magistrate erred both in fact and law by not considering the appellant’s defence; iii. The learned magistrate erred in law by sentencing the appellant by virtue of the minimum mandatory sentence provision; 7. The record shows that, in support of their case, the prosecution called four witnesses. 8. PW1 M.M.N testified that on the 19th of September 2020 at around 1800hours heading to 1900hours she was with her cousin and the cousin's child when they got home only to realize that they had left the keys with her mum who was in PCEA. She testified that she went back for them and while setting out back home, Kavundi appeared in a motorcycle, he stopped and asked her to get on it so that he could take her home. That the said Kavundi passed their home and took her to a house in [Particulars Withheld] Primary School upon which he tied her up with maasai sheets on the mouth and her hands from behind. Kavundi then left and returned at round 2100hours, that he took her to the bed, removed her clothes and had sex with her while her hands and mouth were still tied and covered. 9. The witness testified that she understood what sex entails and that the appellant took her to Musyoka's area when morning came and left her there with a warning not tell anyone otherwise, he would kill her. She testified that they had lived at Musyoka's area at some point and that she stayed at that place until she saw her mother passing aboard a motor cycle. She told this Court that she was afraid the mother would beat her and that her mother attempted to beat her but she pleaded with her to listen to what she had to say. The witness testified that she narrated the incident to her mother, she added that she was feeling pain in her genital area and was bleeding. 10. The witness went on to testify that they then proceeded to report the matter at Machakos Police station then went to the hospital where she was examined and a PRC Form as well as a P3 Form filled. She testified that she was also issued with receipts, treatment notes and a prescription form, all presented as exhibits. The witness testified that she was born on 31st December 2006, a birth certificate was availed to that effect. 11. It was her testimony that she knew Kavundi as he had carried her in his motorcycle before, she identified him as the person who was in the dock. 12. In cross-examination the witness testified that she was taken to a house in [Particulars Withheld] Primary school and that she did not know to whom the house belonged but the house had a bed room and a sitting room, she added that she was taken there at around 1900hours. That there was a wooden seat in the sitting room and that the appellant tied her mouth and hands as soon as she sat down so she was not able to scream. there were no nearby houses and that that the nearest house was some metres away which she demonstrated for the information of the court. 13. The witness went on to testify that she had left the church in the company of Rose Ndamo who was in Class 8 at the time and Patrick Mutinda who is younger and that they got home at about 1830 hours. This Court heard that the grandmother was in her home which is situated within the homestead. She testified that she lived with her mother and brother, and that she was the one who had gone back to collect the key and that she got to the church when it was yet to get dark but within the 6.00 p.m. The witness testified that she had seen Kavundi before but she did not know his home, she added that he https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14361/eng@2025-05-22 2

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had previously carried her in his motor cycle on two occasions and that he wore a coat and a pair of trousers on that day. The witness testified that it was dark by the time they got to the house and that the appellant left her in the house and returned around 2000 hours by which time the house was dark. She testified that knew the accused person as Kavundi and that he removed her clothes and had sex with her. 14. PW2 BMN testified that she is a mother to 4 children including PW1 who is the last born aged 14 years old as per the birth certificate produced before the Court. She testified that she is an employee of the PCEA Machakos and that she was with PW1 and her cousins in church on the 19th of September, 2020 and at about 1630hours whereupon she instructed them to go home and even got a motorcycle for them paying Kshs.100 to the rider. She testified that a while later, her son Anthony called her with information that PW1 was at the gate, she asked PW1 how she had got there but she took off. 15. The witness testified that when she got home, she did not find PW1 and upon inquiring from the rest, they told her that they thought they were together as she had gone back for the keys, she testified that Anthony also informed that PW1 had left aboard a motorcycle with Kavundi. 16. It was her testimony that she decided to go to a place known as Masaa Supermarket where she found her cousin whom she told that she was looking for her daughter. She also asked the cousin the whereabouts of Kavundi since the said cousin was with Kavundi's motorcycle. She testified that she continued looking for Pw1 and that in the process she met Kavundi's brother who informed her that Kavundi's telephone line was off air when he tried calling him. 17. That a while later, a lorry stopped and Kavundi disembarked where the brother asked about the whereabouts of PW1 and he retorted by asking which girl yet he had a wife. She testified that she followed Kavundi and told him that she was informed that he had carried PW1, he insisted that he had a wife. She testified that Kavundi was drunk at the time, she testified that she decided to abandon the issue as the situation was beginning to escalate. She testified that on her way home, some people who were on a motorcycle and including the appellant insulted her calling her "kiino”and threatened that she would get to know who the appellant was. 18. The witness testified that the following morning as she went to church, she informed a certain lady that she had lost her child, the church doors were opened and she left to look for her daughter while making phone calls including to her sister. She testified that she got onto a motor cycle and decided to go to Kwa Musyoka where they lived for 6years. While there, this Court heard that someone spotted her, stopped their motorbike and informed her that they had seen her daughter and that she was crying. She testified that she proceeded to where she had been directed, she saw PW1, held her and told her to get onto the motor cycle, upon reaching a place known as sweet waters, they got into a hotel PW1 ordered tea and told her that she was with Kavundi. the witness testified that she could see blood so she decided to go to the police where they were referred to the General Hospital. This Court heard that upon examination, the doctor told her that there were bruises around the genital area. PRC and P3 forms were filled. 19. She testified that they were told to go back to the Hospital for drugs and to inform the police when she spotted Kavundi. She testified that as it was difficult to spot him she informed the sub-chief who promised to locate him. Eventually the accused person was arrested. 20. In cross-examination, the witness testified that PW1 got back to the church around 1800hours. She testified that she knew the accused person although they had never had any issues prior to this. This Court heard that the witness had never been aboard Kavundi's motor cycle but that he had on one occasion carried PW1 when she had travelled to Nairobi, she testified that she was told this by a threeyear-old child whom she lived with since she had warned PW1 against being carried by motor cycles. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14361/eng@2025-05-22 3

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21. She testified that she knew the house the child had been taken to as she had been shown by the child. This Court heard that the owner of that house informed her that it was a shop which they had closed. She added that the house had two rooms but did not have a lock. The witness testified that the owner confirmed that he heard noises on the particular day coming from the house. Kavundi found her talking to his brother at a time when PW1 was still missing and that later the accused person passed by her while on another motorcycle. 22. She also testified that on that particular day the children slept in the brother's house while she slept in the kitchen because they did not have the keys and that she found PW1 the following day on a Sunday standing alone along the road to Kathiani, she testified that she had informed various people that Mercy was missing. 23. PW3, Dr. John Mutunga filled and presented a P3 form pertaining PW1 aged 13 years who presented with a history of defilement by a person known to her on 19th September,2020. He testified that she presented 5 days after the incident and that on examination he noted bruises on her labia minora and majora and that the hymen was freshly broken with blood around the vaginal walls. He testified that there was no other discharge except blood that the wounds were fresh when the victim went to the hospital on 20th September,2020 around 2.30p.m. 24. It was his testimony that the degree of injury was grievous harm and the probable weapon used was a penile shaft, he added that the victim was put on Post exposure prophylaxis (PEP), emergency contraception and antibiotics. This court heard that the assessment of degree of injury was based on psychological trauma and pain. The PRC form, P3 form, treatment notes, and lab results that indicated the absence of spermatozoa but the presence of bacteria were produced as exhibits in the matter. In cross-examination the witness testified that there was no spermatozoa present and that the incident took place on 19th but the patient presented on the 20th of September,2020, he added that a DNA test was not conducted. 25. The last prosecution witness was PW4, P.C Lucy Akai of the Machakos Police Station was the investigating officer in the matter. She testified that she took over the matter from Inspector Somoina who proceeded on transfer. That investigations commenced, the minor was escorted to Machakos Level 5 where a P3 form was filled and they returned to the Station. The minor's statement was recorded in which she stated that she had gone to see her mother at the PCEA church and on her way home she encountered the accused person Felix Kavundi who told her to board his motorcycle, there was a boda boda stage there. That the appellant then drove off and went in a different direction, PW1 who had on occasion been ferried by the appellant asked where they were going but her inquiries were futile as he threatened her. 26. The appellant took her to an isolated house near Mwanyani Primary School, tied her hands and mouth and locked her therein then went away. Later on, at around 2200hours he returned to the house where he defiled the minor till morning. This Court heard that the PW1's mother had gotten information from another rider that the appellant had carried PW1 so she embarked on a search for him. She found him at his brother's shop where he was drunk. She enquired from him into PW1's whereabouts but he said nothing. This witness testified that the appellant then boarded another motorcycle and shouted at the Complainant's mother as he left saying that he knew where PW1 was and that he was going to defile her. 27. That later PW1 was found by her mother upon which she narrated to her what had transpired. The incident was reported to the police via OB No.22/2019/2020 whereupon they were referred to Machakos Level 5 Hospital where a P3form and PRC Form were filled. Witness statements were https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14361/eng@2025-05-22 4

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recorded, scene visit conducted and appellant was arrested and charged. The witness testified that she came to know the appellant when finger prints were being taken. 28. In cross-examination the witness testified that she is the one who took over the matter and that she did not interrogate PW2's niece or the son. She testified that as per the witness statement, the mother called a boda boda for the girl but she boarded another. 29. The witness testified that she did not visit the scene but IP Somoina did but none of them visited the church. 30. The case proceeded to the defence hearing where the DW1, the appellant in his sworn statement testified that he is a casual labourer and that on 19th September 2020 he was working as a fundi whereby he worked as such on Saturday, Sunday and Monday and that when he finished at about 1300hours he went back to his home at Kyangulu. He went to testify that at about 1400 hours to 1500 hours the assistant Chief asked him to accompany him to the Station, he asked why he was to go to the station and was informed that he would know about it later. He testified that he was put in the cells accused of defiling a child he did not know. 31. He testified that he did not operate bodaboda as alleged by PW1, neither is he known as Kavundi. He testified that he was just a fundi, and did not carry PW1 on the date alleged at 1800 hours because he was at work. He added that on the date he was arrested, had finished work at 1300hours, he denied knowing PCEA church neither the bodaboda stage at the church. He testified that no exhibits were availed to show that he was a bodaboda rider and that he was also not subjected to medical checkup. 32. He further testified that it was not true that the mother called him to take the child home, that he is not from Kitongo neither was he found drunk by the child's mother whom he testified he does not know, he added that he was framed. 33. In cross-examination the witness testified that he is from Kyangulu village in Mavuti where he resides. He testified that Mwanyani is a place in Muvuti, that he knew it but did not know about any PCEA church in Kenya, he added that he was working on the 19th at Benson Ndeto's home in Kilanzoni where he was spending his nights. He testified that he worked on the 19th, 20th and left on 21st at 1300hours. Further, that there were other fundis such as Bernard Mwangi and Benson himself. 34. He testified that he did not know PW1 and PW2, the mother and he only got to know them in Court, he testified that there was no bad blood between him, the Chief, and the people that accompanied the Chief. 35. DW2, Benson Mwangangi Ndeto testified that he is a Nyumba kumi chairman and that on the 19th, 20th and 21st he was working in his home and spent 2 nights there. He testified that he did not know PW1 and her mother nor the person known as Kavundi. He testified that it was not true that Musembi did what he is accused of. That on 19th, 20th and 21st they undid the roof of his house and went for timber in the area. 36. In cross-examination he testified that he is the Chairman of Mavuti Sub-location Nyumba kumi which has 10 villages including Kyangulu, Teni, Kalumoni, Kangata, Kwamani, Ninga, Ikulu, Manyani, etc. He testified that there is no PCEA church known as Siloam in Mwanyani, he added that the appellant arrived at his place on 19th at around 0800hours to 0900hours to help in replacing his roof, that there was also another person called Mwangi, and his wife. 37. He testified further that the appellant spent the night at his place on 19th and 20th although he did not watch over him as he slept. That they slept at 2200hours and woke up at about 0600hours. The witness testified that the appellant slept in the same room as Mwangi. He testified that he did not know https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14361/eng@2025-05-22 5

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PW1 and her mother and that he knows the Nyumba Kumi elders who accompanied the Chief to apprehend the appellant also adding that there was no bad blood between them and the appellant. 38. The appeal was canvassed by way of written submissions. The appellant’s submissions are dated 25/11/2024 while those of the Respondent are dated on 19/11/2024. 39. The appellant has submitted that the trial court failed to bear in mind that the prosecution might have made its case to the required standard of the law but against the wrong person in respect with a framed-up case because human experience has shown that girls and women sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. That, it is difficult to refute because it is framed up evidence against the appellant that was cooked to please the court and tarnish the appellant's name. The appellant submitted further that this court should observe the prosecution evidence was full of contradiction. He relied on the finding and holding of the Court of Appeal in Maina -V- Republic (which had no full citation). 40. The prosecution, on the other hand, submitted that the prosecution witnesses proved the three elements of the offence as set out in David Ondaga Wanyama vs R (2022) eKLR i.e. age of the complainant, penetration and identification of the assailant. That this appeal ought to be dismissed. 41. This being a first appeal to the High Court, I am enjoined by the now settled principle regarding the duty of the first appellate court which was well captured by the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where the Court stated thus: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 42 Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial court and the written submissions filed on behalf of the Parties. 43. I have also read the judgment of the trial court. 44. Having done so, I find that two key issues arise for my determination namely: i. whether the evidence adduced by the prosecution was sufficient to prove the charge of sexual assault preferred against the appellant beyond any reasonable doubt. ii. whether the appellant’s defence was considered iii. whether the trial court erred in law by sentencing the appellant by virtue of the Minimum Mandatory sentence provision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14361/eng@2025-05-22 6

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I. Whether the evidence adduced by the prosecution was suffcient to prove the charge of sexual assault preferred against the appellant beyond any reasonable doubt. 45. On the first issue, the offence of defilement is created by Section 8 (1) as read with 8 (2) of the Sexual Offences Act No. 3 of 2006. Section 8 (1) provides as follows: “ (1) 46. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The ingredients of the offence of defilement were reiterated by the High Court in the case of George Opondo Olunga Vs Republic [2016] eKLR, which are: i. Proof of age of the complainant to be below 18 years ii. Proof of penetration iii. Proof that the accused person was the perpetrator (identification). 47. The question which needs to be answered is whether the above ingredients were proved to the required standards? 48. It is not in dispute that the Complainant (PW1) at the time of the commission of the offence, was 13 years old as the same could be determined from the evidence produced in the trial court Pext.5, (Birth Certificate); and the age of the Complainant has not been a subject of the instant appeal. 49. On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows: “ The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 50. The Complainant testified as PW1. She testified that on 19/9/2020 while on her way home from picking keys from her mum in church the Appellant appeared in a motorcycle. He stopped and told her to get on, he would take her home. He passed her home and took her to Mwanyani primary and to a house. PW1 states that the Appellant tied her up with Maasai sheets on her mouth and a lesso to tie her hands behind. He then left and came back at around 9 00p.m. The Appellant took her to the bed and removed her clothes. he had sex with her. Her hands and mouth were still tied. He then took her to Musyoka's place and left her there. The appellant threatened her. She then saw her mother and told her what happened. She was feeling pain in her genitals and was bleeding. PW2 in looking for her daughter PW I she was informed by Antony that she was taken by the Appellant. She later saw the Appellant and when she asked him where her daughter was, he denied having her. The following day she was informed that her daughter had been seen and she was crying. She talked to her daughter and she told her that she had been with the Appellant and she saw blood. In cross examination she confirmed that they slept outside the night of the incident as they didn't have the keys. 51. PW3 stated on examination there were no physical injuries. He examined her private parts and found bruises on the labia minora and majora. The hymen was freshly broken and blood was oozing around the vagina wall. He opined that the probable weapon was a penile shaft. He produced the P 3 Form as PExt.2. He also produced the PRC Form as PExt.3 which captured the injuries and blood stains around the vagina, hymen and lacerations of the vaginal walls. This witness formed the opinion that there was evidence of defilement. PWI's evidence is corroborated by PW3. The examination proved there was penetration as the hymen was freshly broken and she was bleeding. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14361/eng@2025-05-22 7

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52. The evidence of those two witnesses leave no doubt that the prosecution laid sufficient evidence to prove the fact of penetration. I so find. 53. Finally, on the ingredient of proof that the accused person was the perpetrator (identification). The Complainant, PW1 stated that the appellant was well known to her as he operated a motor cycle. She also stated that Kavundi appeared in a motorcycle, he stopped and asked her to get on it so that he could take her home. That the said Kavundi passed their home and took her to a house in Mwanyani Primary School upon which he tied her up with maasai sheets on the mouth and her hands from behind. Kavundi then left and returned at round 2100hours, that he took her to the bed, removed her clothes and had sex with her while her hands and mouth were still tied and covered. 54. In cross examination PWI stated that the Appellant had carried her on 2 occasions from home to church before the incident. This showed that the Appellant did indeed know where the victim PWI lived. PW2 also testified that she knew the appellant a motor cycle rider. In her evidence she states that she met him and asked him where her daughter was. The appellant was well known to them. PW1 and PW2 refer to him as "Kavumbi”. 55. Thus, PW I and PW2 knew the appellant very well. This was a case of recognition as opposed to identification. See the case of Reuben Taabu Anjononi & 2 Others Vs Republic the Court of Appeal in Nairobi held:“ ….recognition not identification of assailants is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. 56. I therefore find that the appellant was positively identified as the perpetrator or the defiler of the Complainant herein. In weighing the testimony of the Complainant as corroborated by the Complainant’s mother and the Doctor, I find that the Complainant’s account of events of the material day was cogent and positively linked the appellant with the offence. An offence of such nature could be proved by way of oral or circumstantial evidence of the Complainant and in the instant case, the oral evidence was credible. In AML v R [2012] eKLR it was held that: “ the fact of rape is not proved by way of a DNA test but by way of evidence” 57. The prosecution thus proved the offence of defilement against the Appellant beyond reasonable doubt. II. Whether the appellant’s defence was considered. 58. In the trial court’s judgement, it was stated that none of the allegations raised in the defence came up during the cross examination in the trial. In cross examination of DW2, stated that theappellant spent the night at his place on 19th and 20th although he did not watch over him as he slept. It is most likely that even if the appellant sneaked out and went back to the house, he had left the complainant, this witness wouldn’t have known. The defence of alibi was thus an afterthought and was not strong enough to rebut the prosecution evidence as against the appellant. The trial court was right in rejecting the appellant's defence. III. Whether the trial court erred in law by sentencing the appellant by virtue of the Minimum Mandatory sentence provision. 59. The appellant submitted that his sentencing to 20 years imprisonment was harsh, inhumane and a violation of the right to human dignity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14361/eng@2025-05-22 8

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60. The Supreme Court has settled the Law on the sentences under Section 8 of the Sexual Offences Act in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 that the judgment in the Muruatetu case does not apply to the Sexual Offence Act. The Supreme Court reiterates that the judgment in the Muruatetu case applies to Section 204 of the Pedal Code which relates to the offence of murder and the death sentence. The Muruatetu judgment will not apply to the minimum mandatory sentence provisions in the Sexual Offence Act. 61. This court cannot depart from the above Supreme Court’s decision. The appeal on the sentence has no merits. The complainant in this case was a minor aged thirteen (13) years when she was defiled. The sentence of 20 years was not only deserved but was also lawful pursuant to Section 8 (3) of the Sexual Offences Act No. 3 of 2006. 62. It is my finding that this appeal lacks merit and I hereby dismiss it in entirety. 63. Right of appeal fourteen (14) days. 64. It is hereby so ordered. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 22ND MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 22ND MAY 2025 In the presence of: In person........... for Appellant Ms. Agatha.............. for Respondent Milly........ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14361/eng@2025-05-22 9

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