Erick Kyalo Mulei v Republic

5. Upon considering the evidence placed before the trial court, the Appellant was convicted of the offience of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to life imprisonment on 13/2/2023. B. Petition of Appeal & Amended Grounds of Appeal 6. 7. 8. Being dissatisfied with the decision of the trial court, the Appellant lodged the instant appeal against both the conviction and sentence in his undated Memorandum of Appeal raising two grounds of appeal as follows:-. i. the learned trial magistrate erred in both fact and law by convicting him on evidence that didn’t meet the minimum threshold to uphold a conviction ii. the learned trial magistrate erred in both fact and law by not considering his sworn defence The Appellant has through his submissions further raised four amended grounds of appeal namely: a. That the trial Magistrate erred in law and facts by not exercising a proper competence inquiry test as per Section 19(3) of the Evidence Act in respect to PW- 1. b. That the learned trial magistrate erred in law and fact by failing to find that the prosecution's evidence on penetration was insufficient to justify a life sentence. c. That the imposition of a life sentence on the appellant violates emerging jurisprudence on sentencing discretion and contravenes Article 160(1) of the Constitution. d. That the trial court improperly rejected the defence evidence which if put on proper consideration could have established the appellant's innocence regarding the alleged penile penetration of the victim. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 6/3/2025 and filed on 10/3/2025 while the Respondent’s submissions are dated 7/2/2025 filed by Ms. Agatha Abang, prosecution counsel. I have had the opportunity to read through the parties’ respective submissions. C. Analysis and Determination 9. 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14399/eng@2025-06-12 2

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10. Guided by the above principle, I have carefully considered the grounds of appeal, the amended grounds of appeal, the evidence presented before the trial court and the written submissions filed on behalf of the Parties. 10. I have also read the proceedings and judgment of the trial court. Having done so, I find that the issues arising for my determination are; i. whether the evidence adduced by the prosecution was sufficient to prove the charge of defilement preferred against the Appellant beyond any reasonable doubt and; ii. whether the trial court violated the emerging jurisprudence on sentencing direction. i. whether the evidence adduced by the prosecution was sufficient to prove the charge of defilement preferred against the Appellant beyond any reasonable doubt. 11. On the first issue, the offience of defilement is created by Section 8 (1) of the Sexual Offences Act No. 3 of 2006. Section 8 (1) provides as follows: “ (1) 12. 12. A person who commits an act which causes penetration with a child is guilty of an offience termed defilement." The ingredients of the offience of defilement were reiterated by the High Court in the case of George Opondo Olunga v 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). The question which needs to be answered is whether the above ingredients were proved to the required standards? Age of minority 13. It is not in dispute that the complainant (PW1) at the time of the commission of the offience was 11years old as the same could be determined from the Birth Certificate produce as PExt.3 showing the Complainant was born on 6.9.2009; and the age of the complainant has not been a subject of the instant appeal. The ingredient of age was therefore proved beyond reasonable doubt. Penetration 14. 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.” 15. The evidence touching on penetration herein is that PW1-Victim, PW2-victim’s school mate, PW3victim’s mother and PW5-Clinical Officer. The trial court noted that the Complainant PW1 aged 11 years did not understand the meaning of oath taking and therefore she gave unsworn statement. She proceeded to state her name, school, age and class she attended. She testified that on 30/6/2021 she was sent by her mother’s friend to get beans. She didn’t find the beans. On her way back home, she met the Appellant who followed her. He caught her hand and pulled her towards a ditch. The Appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14399/eng@2025-06-12 3

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removed his clothes and hers. He then slept with her. PW1 stated that the Appellant inserted his private parts used to pee into hers. The following day Catherine came. PW1 was not nearby. When PW1 returned home, her mother asked her what happened and she denied. The mother then took her to her friend Maggie who owns a shop and again she was asked and she denied. The following day her mother woke up and threatened to beat her if she didn’t say what had happened. PW1 testified that she told her what had happened and she took her to hospital and to the Police. 16. On cross examination she stated that the Appellant caught her mouth and warned her not to tell her mother. She confirmed that Catherine is the one who told her mother and that there were many children. 17. PW2 too was a minor whom the court took through voire dire examination and upon the trial court being convinced that the minor understood the meaning of oath taking, she was allowed to give sworn statement. PW2 stated her name, school, class and age. She testified that on 30/6/2021, she had left school and met PW1 who was eating wild grapes. She was in company of other students when she saw the Appellant who went to her aunt’s gate and crossed. PW1 followed him. She followed after them with school mates namely MN, FM, MK and KS. She saw the Appellant go with PW1 to a ditch. PW2 and her team were on top while PW1 and the Appellant were down. She saw the Appellant put his hand on PW1’s mouth. KS said the man is called Kyalo. PW2 went home and was sent to Kavumbu. The Appellant did bad manners to PW1. The Appellant took out his private parts and put it into PW1. It refused. At Kavumbi she informed PW1’s mother that PW1 had been done for bad manners. PW1’s mother thought she was lying and called one Maggie and she told her what she saw. She was later called to the police station. 18. On cross examination, she stated that she told PW1’s mother the same day and not the following day. She stated that PW1 had denied the incident happened. She was present when PW1 denied. She stated that she saw the Appellant remove PW1’s inner pants and put his hand on her mouth. The Appellant took PW1 to a “mtaro”. She was told the Appellant’s name; she had never seen him before. 19. PW3, was the Complainant’s mother. She testified that on 01/7/2021 at 3.00pm PW2 went to her “kibanda” where she sold chips and informed her that on 30/06/2021 when she was coming from school she had seen PW1 being defiled. She fell down and was assisted up and she said it was done by the Appellant who had an earing. She took her to her friends Maggie and Jackline. PW1 denied being defiled. On 02/07/ 2021, she beat her and her neighbours talked to her and she admitted. She started the police process and went to Kasolongo police station where they were referred to Masii. She stated that the Appellant was a friend to her husband. 20. On cross examination, PW3 confirmed that she was on 01/7/2021 informed only by PW2 what transpired and no one else. She stated that the Appellant had been arrested before at Nairobi. 21. PW5 was the Clinical Officer. She testified that the complainant, PW1 aged 11 years was seen at their facility on 02/7/2021. She had been sent by police on allegation of defilement on 30/06/2021. She was defiled while heading home by the roadside on the bush. She had no visible injuries on her body. External vagina normal. Bruises noted on labia minora. No blood. Hymen broken. Present of discharge noted. Lab results pregnancy negative, urinalysis pus cells seen showing infection, HIV Negative, Syphilis negative, Hv showed pus no spermatozoa. She was given medication and treated for the infection. A P3 form was filled on 02/07/2021 by her. 22. On cross examination, she stated that a broken hymen will have membrane present seen and bruising on her labia showed she was defiled. The complainant was allegedly defiled on 30/6/2021 and was taken to the hospital on 02/7/2021 about three days later. She stated that if the Appellant was brought then she could have examined him and it would be helpful to have the Appellant examined. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14399/eng@2025-06-12 4

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23. On the foregoing evidence, according to PW1, she was on her way home when she met the Appellant who followed her, held her hand and pulled her towards a ditch where water passes. He then removed his clothes and hers and slept on her. The Appellant put his private parts used to pee into hers. According to PW2, she was in company of other students coming from school when she met PW1 eating wild grapes, she saw the Appellant who went to her aunt’s gate and crossed. PW1 followed him. 24. On this evidence, whereas PW1 testifies that the Appellant followed her, PW2 testifies that it is PW1 who followed the Appellant. 25. PW2 testified that the Appellant took out his private parts and put into PW1, it refused. What I am struggling to understand is the phrase “it refused”, what did PW2 mean. Did it mean that the Appellant did not manage to penetrate PW1 or not. 26. There are a number of questions that I am also asking myself; why would PW2 and her school mates just stand back and watch their colleague being defiled without raising an alarm, why didn’t the Investigating Officer endeavour to interrogate these other students who were with PW2? 27. Further, PW2 testified that she went to PW1’s mother the same day the incident occurred that is 30/6/2021 and not the following day whereas PW3 testified that on 01/07/2021 at 3.00pm, PW2 went to her “Kibanda” and informed her that on 30/6/2021, when she was coming from school she had seen PW1 being defiled. The record shows PW1 consistently denied having been defiled as alleged and it was only until her mother threatened to beat her that she owned up and admitted that she had been defiled. Was PW1 coerced into making an admission to the occurrence of the defilement? 28. I have also observed that PW4, the Clinical Officer testified thatPW1 was defiled while heading home by the roadside on the bush whereas PW2 who purports to have witnessed the incident stated that the same took place in a ditch. PW4 stated that PW1 had no visible injuries on her body. External vagina normal. Bruises noted on labia minora. No blood. Hymen broken. Present of discharge noted. Lab results pregnancy negative, urinalysis pus cells seen showing infection, HIV Negative, Syphilis negative, Hv showed pus no spermatozoa. She was given medication and treated for the infection. 29. It is my position that, the fact that there was a broken hymen does not mean that the Appellant was responsible. The hymen may have been broken long time ago and therefore not automatic that the complainant had to bleed. It is also my considered opinion that had the Appellant been medically tested to establish whether he too had similar infection to that of the complainant probably, the prosecution would have positively connected him with the offience. Equally, it was not shown that the infection which was treated was associated with the alleged sexual assault. However, the bruises noted on labia minora could have been as a result of many factors including sexual assault. See Criminal Appeal Number 186 of 2010, P.K.W v Republic where the Court of Appeal at Nyeri held that: “ Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offiences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girt child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. " https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14399/eng@2025-06-12 5

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30. I find that the ingredient of penetration was not proved to the required stand of proof beyond reasonable doubt. i. Proof that the accused person was the perpetrator (identification). 31. The record shows that PW1 testified that on her way home she met the Appellant who followed her. The following day Catherine came and she was not nearby. She returned home and her mother asked what had happened, she denied. The mother then took her to her other friend with a shop, one Maggie where she was also asked what happened and she again denied. The following morning her mother woke her up and threatened to beat her if she did not say. She then told her. The record does not show what exactly PW1 told her mother and whether she mentioned the Appellant as the perpetrator herein. PW1 stated that he knew the Appellant as his father’s friend. This is identification by recognition but then one would ask is the Appellant the only friend PW1’s father had or did the Appellant commit the offience? As already found, the Appellant was not proved to have committed the offience beyond reasonable doubt. 32. Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the judge should be reminded that mistakes in recognition of close relatives and friends are sometimes made. See Republic v. Turnbull & others (1976) 3 ALLER 549. 33. PW2 on the other hand testified that she was told the Appellant’s name. She had not known him before. PW2 did not disclose who had told her the Appellant’s name. 34. PW3 testified that she fell down when she was informed that the defilement was done by one Kyalo who had an earing. She then looked for PW1 and inquired. PW2 seems to have identified the Perpetrator by an earing. The record does not reflect if the issue of the Appellant having worn an earing on the alleged day emerged and if the Appellant had an earing at police booking or at trial. 35. In the case of Cleophas Otieno Wamunga v Republic Court of Appeal Criminal Appeal No. 20 of 1989 KLR 424, the Court of Appeal held that: “ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”. 36. This court finds that the evidence on identification of the Appellant as the perpetrator of the defilement herein was not proved beyond reasonable doubt and the trial court’s finding on the same was erroneous. Defense 37. The Appellant gave unsworn evidence and denied committing the offience. He stated that he worked as a waiter in the complainant father’s hotel until 03/06/2021 when he got another job in Nairobi and they agreed he would come for his money on 2/07/2021. He stated that on 2/07/2021 he went to see the complainant’s father and on seeing him, he screamed calling him a thief. He testified that members of the public rushed and assaulted him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14399/eng@2025-06-12 6

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38. He was booked at Masii and he thought that he would be charged with stealing only for him to be charged with defilement herein. 39. The record reflects that in her judgement, the trial court observed that PW1 and PW3 identified the Appellant as the friend of their father/husband. The Accused when cross-examining PW3 did not allude to any dispute between him and her husband and found the defence to be un afterthought. 40. I fault the trial court’s finding with regards to the Appellant’s defence as being an afterthought for the main reason that the Appellant did not at all state that there was any dispute between him and the father/husband to PW1 and PW3 respectively. What I established the Appellant to be alleging is money (probably wages/salary owed to him for having worked for the complainant’s father before he got another employment in Nairobi. The Appellant could not have been expected to cross examine PW1 and PW3 on matters that did not concern them. 41. I believe had the Complainant’s father been called as a prosecution witness then the Appellant would have gotten an opportunity to cross examine him accordingly on the debt and how he was arrested. 41. Unfortunately, no evidence was led on how the Appellant was arrested in order to contradict his testimony on his arrest. 42. I find that the trial court was wrong in rejecting the Appellant’s defence. 43. Lastly, I have considered the provisions of Section 124 of the Evidence Act Cap 80 Laws of Kenya which provides that: “ Notwithstanding the provision of Section 19 of the Oath and Statutory Declaration Act, where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in a proceeding against any person for an offience, the accused person shall not be liable to conviction of such evidence unless it is corroborated with other material therefore implicating him. Further; Section 124 of the Evidence Act Cap 80 Laws of Kenya provides that: Provided that in criminal cases involving a sexual offience, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings the court is satisfied that the alleged victim is telling the truth. In light of Section 19 of the Oath and Statutory Declaration Act, if the court is receiving the evidence of a child of tender age, it must be of the opinion that she/he possessed of sufficient intelligence to understand the duty of speaking the truth. If such a child wilfully gives false evidence on oath he/she will be guilty of perjury." 44. I have perused the trial courts judgement. I couldn’t find any explanation given as to why the trial court believed that the two minors (PW1 and PW2) were telling the truth irrefutably or their alleged corroboration was truthful particularly for PW2, by dint of Section 124 of the Evidence Act. 45. On the whole, I find that the evidence adduced by the prosecution was not sufficient to prove the charge of defilement preferred against the Appellant beyond any reasonable doubt. ii) whether the trial court violated the emerging jurisprudence on sentencing direction. 46. Had this court upheld the conviction, the sentence would have been confirmed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14399/eng@2025-06-12 7

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Section 8 (2) of the Sexual Offences Act which provides that:“ (2)A person who commits an offience of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”. 47. This court is in agreement that the life sentence that was imposed on the Appellant was the minimum and lawful sentence at the time and by virtue of the supreme court’s judgment in Republic v Joshua Gichuki Mwangi the courts are bound by the minimum mandatory sentences as provided for by the law. D. Disposition 50. In view of the foregoing, I find that there was no sufficient evidence for convicting the Appellant for the offience of defilement herein therefore: a. The appeal herein is upheld. The conviction of the Appellant is hereby quashed and the life sentence imposed on him set aside. b. The Appellant is set at liberty forthwith unless otherwise lawfully held. c. Orders accordingly. File closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 12TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 12TH JUNE 2025 In the presence of: At Kamiti Maximum............ for Appellant Ms. Agatha............ for Respondent Milly................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14399/eng@2025-06-12 8

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