James Muthoka Mbulu v Republic

4. Being aggrieved by the conviction and sentence, the Appellant has preferred this appeal on grounds that; “ a. The learned Trial Magistrate erred in matters of law and fact by failing to observe that the evidence procured by the prosecution did not have any probative value; b. The learned Trial Magistrate erred in matters of law and fact by failing to find that the essential ingredients of the offence were not discharged against the appellant; c. The learned Trial Magistrate erred in matters of law and fact by failing to find that the whole case was marred by material contradictions and inconsistencies which went to the root of the charges facing him; d. The learned Trial Magistrate erred in matters of law and fact by failing to find that the legal burden against the appellant was not established due to the weak evidence that was adduced; e. The learned Trial Magistrate erred in matters of law and fact by failing to find that the legal burden against the appellant from the commission of the ill- fated offence. f. The learned Trial Magistrate erred in matters of law and fact by convicting me while failing to observe and find that he was unrepresented a violation that the trial court took advantage of commenced a process of trial yet he had no documentary evidence as per Article 25 (c) ; g. Spent h. The learned Trial Magistrate imposed a sentence which is harsh, excessive and not in conformity with the recent jurisprudences in Sexual Offences Act No 3 of 2006.” 5. The appeal was canvassed by way of written submissions. 6. In his submissions dated 6th May 2025 and raised four issues. First, it was his submission that the court relied on the P3, PRC form and the age assessment forms which were not legally produced as the makers of the said documents were not availed for cross examination contrary to Section 33,34 and 77 of the Evidence Act and Article 50 (2)(j) of the Constitution. According to the Appellant, the doctor would have clarified the issue of penetration in terms of who penetrated the complainant and at what time and whether DNA was available to show the real culprits. To support this contention, reliance was placed on the cases of Kenneth Mwendwa Mutungi v Republic [2019] eKLR, Chaol Rotil Angela v Republic [2001] e KLR, Daniel Makokha Ogutu v R, Cr App No 155 of 2011, Edward S/O Msenga v Reginam (1942) EACA 553 and Nicholas Mutua Wambua v Republic, Criminal Appeal no 373 of 2006. 7. Secondly, it was submitted that the elements of the offence of defilement were not proven beyond reasonable doubt. That the Trial court relied on a copy of the birth certificate without first seeing the original or certified copy for verification. That the complainant was 17 years and four months and the court should have taken this into consideration when evaluating the issue of consent. That there was doubt on the issue of penetration as the Appellant had just come from another man’s house when the Appellant was arrested. That the complainant had multiple male partners and eventually got married https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16773/eng@2025-11-14 2

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and sired a child in the course of the trial. To buttress this point, reliance was placed on the case of Jacob Odhiambo Omuombo v Republic, Cr Appl No 80 of 2008, Maina v Republic (1970) EACA, Daniel Kiplimo Cherono v Republic [2014] e KLR and Kirinya v Republic [2024] KECA 1125 (KLR). 8. Thirdly, it was contended that the learned magistrate relied on evidence of incredible and unreliable witnesses. That PW2 admitted that she voluntarily juggled through houses of different men, she knew she was engaging in sexual activity and successfully shielded those she did not want implicated. Lastly, it was submitted that the sentence was harsh, excessive and beyond statutory provisions. That the prosecution should consider diversion as the Appellant was 19 years old while the complainant was 8 months shy of being 18 years old. The court was urged to consider a non-custodial sentence for the remainder of the term. Analysis and determination. 9. As the first appellate court, I have carefully considered and evaluated the evidence adduced in the trial court so as to arrive at my own independent conclusion, albeit keeping in mind that unlike that court I did not see or hear the witnesses. I have also considered the rival submissions, the cases cited and the law. 10. The Appellant was charged with the offence of defilement contrary to section offence of defilement contrary to Section 8(1) as read with 8 (4) of the Sexual offences Act which state; “ (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 11. The elements of this offence are; proof of penetration, that the victim is a child and the age of the child for purposes of the sentence and the identification of the accused person as the perpetrator of the offence. 12. On the issue of age, in the case of Edwin Nyambogo Onsongo v Republic (2016) eKLR the Court of Appeal stated: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 13. From the record, PW1 stated that her granddaughter was 16 years old. Whereas the victim did not herself state her age there was evidence that in the course of investigations she underwent an age assessment which disclosed that she was 17 years old. Her age was also confirmed through a certificate of birth No. 75XXXX issued on 12th October 2004. The entries in the birth certificate were not challenged or rebutted and my finding therefore is that it constitutes credible evidence of her age as being 17 years and about 5 months as at the time of the commission of this offence. The age in the birth certificate corresponds to that in the age assessment report, the P3 and PRC forms. The complainant was for all intents and purposes a child. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16773/eng@2025-11-14 3

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14. The Second element is proof of penetration. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Genital organs are defined by the same section to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. 15. From the PRC form indicates that the complainant’s hymen had an old tear. While such evidence per se is not proof of penetration, the complainant testified that she stayed with the accused person for two weeks and that during that period they slept together and they had sexual intercourse. That she indeed stayed with the accused is corroborated by the evidence of her grandmother (PW1) and by PW3, the arresting officer who both testified that they found the accused and the complainant together in the accused’s house at Kithini market. PW3 did not know the accused or the complainant before and was merely acting on the instructions of his superior. He therefore had no reason to lie against the accused person. It is my finding that he was a credible and trustworthy witness and hence his evidence is reliable. This court also believed the testimony of the complainant when she stated that she and the appellant had sexual intercourse during the time they stayed together. She was well aware what sexual intercourse was as she was also having liaisons with other men. That is not however to say that the man who gets caught should get away with it. The complainant was a child and under the law she was incapable of consenting to the act and it was unlawful for the appellant to keep her in his house as he did. The appellant alleges that he was framed but as I have stated, PW3 who accompanied the complainant’s mother to that house had no reason whatsoever to lie against him. In his defence, during cross examination, the appellant conceded that he knew the complainant before, that he sent money to her, that they indeed had sex and that she was found in his place. In the premises I am satisfied that the fact of penetration was proved beyond reasonable doubt. 16. As regards identification of the perpetrator there is more than sufficient proof of identification. As stated earlier, the appellant himself conceded that he was known to the complainant. They were also found together by PW1 and PW3. Consequently, that the appellant was the perpetrator of the offence was also proved beyond reasonable doubt. 17. The upshot is that the charge against was proved beyond reasonable doubt and as such the appeal against conviction has no merit and is dismissed. 18. As for the sentence, Section 8 (4) provides for a minimum sentence of 15 years. Taking into consideration the circumstances of the case, the age of the appellant and fact that that he was a first offender I am persuaded that the sentence of imprisonment for 25 years was harsh and proceed to reduce it to 15 years. 19. The Appeal thus succeeds only to the extent that the sentence is reduced to imprisonment for fifteen (15) years in terms of the sentence. The appeal is otherwise dismissed. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 14TH DAY OF NOVEMBER 2025. E N MAINA JUDGE In presence of: Ms Kaburu for the state The Appellant in person (virtually from Kamiti Max Prison) C/A: Geoffrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16773/eng@2025-11-14 4

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