David Njoka Gaturo v Republic

6. Although in his grounds of appeal the appellant did not specifically challenge the validity of the sentence imposed on him by the trial court, he opened his submissions by contesting the constitutionality of minimum mandatory sentences prescribed under the Sexual Offences Act. 7. Relying on the precedent set by the Supreme Court in Francis Karioko Muruatetu & 4 others V Republic [2017] KLR and subsequent decisions by the Court of Appeal in BW V Republic [2019] eKLR and Dismas Wafula Kilwake V Republic [2018], the appellant argued that the learned trial magistrate erred by meting out the minimum mandatory sentence of 20 years imprisonment without considering his defence and mitigation. 8. Regarding his appeal against conviction, the appellant submitted that he was wrongly convicted as in his view, the ingredients of the offence of defilement were not proved by the prosecution beyond any reasonable doubt; that although the victim testified that he had been sodomized, this allegation was not supported by medical evidence. In his view, absence of medical evidence corroborating the victim’s claims meant that penetration was not proved to the standard required by the law. 9. The appellant further contended that the prosecution case was marred by material discrepancies and contradictions, and that the testimonies of the prosecution witnesses were unreliable. He argued that these contradictions created doubts that ought to have been resolved in his favour. 10. The appeal was contested by the respondent. Ms. Muriu, learned prosecution counsel submitted that through its five witnesses, the prosecution proved all the three essential ingredients of the offence of defilement, including the element of penetration, beyond all reasonable doubt. 11. Learned prosecution counsel disputed the appellants claim that the prosecution case was riddled with material contradictions and discrepancies and submitted that the prosecution witnesses were consistent in their narration of events; that minor discrepancies which may have arisen were normal in the course of a criminal trial and did not affect the substance of the prosecution case. Counsel urged the court to find that the prosecution had proved the offence preferred against the appellant beyond any reasonable doubt and dismiss the appeal for lack of merit. 12. This being a first appeal to this court, it is my duty to reconsider and to re-evaluate the evidence adduced before the trial court in order to arrive at my own independent conclusion on whether or not the appellant was correctly convicted and sentenced. In doing so, I should remember that unlike the trial court, I neither saw or heard the witnesses as they testified in order to assess their demeanour and give due allowance for that disadvantage. See: Okeno V Republic [1972] EA 32; Kiilu & Another V Republic [2005] /KLR 174 13. 14. I have carefully considered the appellant’s grounds of appeal, the parties rival written submissions and the evidence on record. I have also read the judgement of the trial court. Having done so, I find that only two issues arise for my determination, namely; (i) Whether the prosecution proved the offence of defilement against the appellant beyond any reasonable doubt. (ii) Whether the sentence imposed on the appellant was lawful. It is now settled law that in order to sustain a conviction for the offence of defilement, the prosecution must prove beyond doubt three critical ingredients of the offence which are; (i) Age of the victim (ii) Penetration https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18965/eng@2025-12-17 2

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(iii) Positive identification of the assailant. 15. In this case, the particulars supporting the charge alleged that at the time the offence was committed, the victim was 15 years old. From the evidence on record and the appellant’s submissions, it is clear that the victim’s age as stated in the charge sheet was not disputed by the appellant. But this notwithstanding, the victims age was proved by the testimony of his mother who testified as PW4. She testified that the victim was born on 25th September 2006. This fact was confirmed by the victim’s birth certificate which was produced as PExhibit 4. It is therefore my finding that the victim’s age as stated in the charge sheet was proved beyond any reasonable doubt. 16. Regarding the second element of penetration, the victim testified as PW1 and recalled that on 3rd October 2021 at around 2.00 pm, he was seated outside the Polytechnic when the appellant, who he knew by his name of Njoka and who was known to him known for a long time since they lived in the same neighbourhood requested him to escort him to the Polytechnic. He obliged. 17. When outside the Polytechnic, the appellant sexually assaulted him by inserting his penis into his anal orifix and thereafter gave him Kshs.10 warning him not to tell anyone what had happened. When describing his ordeal, this is what the victim said, “ …..he removed my clothes. He removed my white trousers. He destroyed my body, my anus. I use it to go to the toilet. He used his manhood to destroy my behind. He uses that manhood to urinate….” 18. PW1’s evidence was supported by the evidence of PW3, CWM, the minor’s auntie. PW3 testified that when PW1 got home around 3.00 p.m., he appeared to be in pain and on being threatened with a beating, he reported that Njoka had taken him to a bush near the polytechnic, ordered him to remove his trousers after which he defiled him. She took him to Murang’a Level 5 Hospital for examination and treatment. 19. At the hospital, he was examined by a medic John Ndereba Mwangi who testified as PW4 but was erroneously listed in the trial court’s proceedings as PW3. Upon examination, PW4 noted minor lacerations around the victim’s anal region. Anal swabs subjected to laboratory tests did not contain spermatozoa. He produced his treatment notes as PExhibit 1 and the P3 form containing his findings as PExhibit 2. He concluded that the lacerations were caused by penetration. On being cross examined by the appellant, he stated as follows; “ According to the case, the lacerations are out of penetration. If someone else caused, they could not have been so close to the opening. We get history and confirmed through examination.” 20. Upon my own independent appraisal of the evidence on record, I find that PW1’s evidence that he was sexually assaulted on the material date and time was materially corroborated by the evidence of PW3 and PW4 as well as the medical evidence in the treatment notes and the P3 form. 21. Given the legal definition of penetration which can be either partial or complete insertion of the genital organs of a person into the genital organs of another person, it goes without saying that penetration need not be complete or deep into the genial organ of the victim - See: Section 2 of the Sexual Offences Act. It is also noteworthy that according to the P3 form, PW1 was medically examined on 4th October 2021, a day after the offence was allegedly committed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18965/eng@2025-12-17 3

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In view of the foregoing, I wholly concur with the learned trial magistrate’s finding that the prosecution proved the element of penetration beyond any reasonable doubt. 22. On whether or not the appellant was positively identified as the culprit, there is undisputed evidence that PW1 and the appellant lived in the same neighbourhood and that consequently, PW1 knew the appellant very well prior to the material date. That is why PW1 knew him by his second name of Njoka. There is evidence that the offence was committed in broad daylight around 2.00p.m. and therefore PW1 must have seen and properly identified his assailant. PW1’s identification of the appellant was not the identification of a mere stranger. His was evidence of recognition which is always more reliable. The fact that he described the appellant to PW3 as his assailant soon after the incident by giving his name and where he lived is clear demonstration that he was certain about the identity of his assailant. 23. On the above evidence, I am satisfied that PW1’s recognition of the appellant as the culprit in this case was positive and reliable and there was no room for mistaken identity. It is PW1’s description of the appellant as his assailant that led to his arrest. The appellant’s statement in defence to the effect that he was arrested for an offence he knew nothing about compared with the rest of the evidence is to say the least, unworthy of belief. 24. A reading of the learned trial magistrate’s judgement reveals that she carefully interrogated the evidence placed before her including the appellant’s statement in defence. She even warned herself of the danger of basing a conviction on the uncorroborated evidence of a singe identifying witness. After her consideration of the evidence in it’s entirety, she made a finding that PW1 was a truthful and reliable witness and proceeded to apply the provisions of Section 124 of the Evidence Act which empowers a court to convict on the basis of the sole evidence of a minor victim in sexual offences if for reasons to be recorded, the court was satisfied that the victim was speaking the truth. Given the evidence on record, I am unable to fault the learned trial magistrate’s finding that the appellant was positively identified as the person who defiled PW1 as alleged. 25. Contrary to the appellant’s submissions that the prosecution case was full of discrepancies and contradictions that adversely affected the prosecution case, I find that although there was some discrepancy between the evidence of PW1 and PW2, the discrepancy was not material as it did not go to the heart of the prosecution case. 26. I am in agreement with the Court of Appeal when it held in John Nyaga Njuki & 4 others V Republic (2002) eKLR as follows; “ In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.” 27. On my part, I have considered in totality all the evidence adduced by the prosecution in support of its case against the appellant. Having done so, I find that the discrepancies or contradictions referred to by the appellant in his submissions did not create any doubt in the prosecution case. Besides the evidence of PW2, there was evidence from other witnesses which proved the guilt of the appellant as charged beyond any reasonable doubt. It is thus my finding that the appellant was properly convicted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18965/eng@2025-12-17 4

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28. Turning now to the appellant’s appeal against sentence, Section 8 (3) of the Sexual Offences Act makes it clear that anyone convicted of the offence of defiling a minor aged between twelve (12) and fifteen (15) years is liable to a minimum mandatory sentence of twenty (20) years imprisonment. 29. From the above penal provision, the trial court did not have any discretion to impose a lesser sentence than twenty years imprisonment since this was the minimum mandatory penalty prescribed by the law. The only discretion the court had was to impose a sentence exceeding the minimum set by the law. 30. Regarding the appellant’s argument that minimum mandatory sentences provided for under the Sexual Offences Act (SOA) were unconstitutional for fettering the courts discretion in sentencing, the appellant based his argument on the Supreme Court’s decision in the Francis Muruatetu case (Supra) and the subsequent decisions from the Court of Appeal which applied the principle in the Muruatetu case to the minimum mandatory sentences prescribed in the SOA. 31. When overturning the Court of Appeal’s decision in Joshua Gichuki Mwangi V Republic Criminal Appeal ( Nyeri) No. 84 of 2015, the Supreme Court stated as follows; “ …We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute. It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the constitution….” 32. Flowing from the foregoing, the appellant’s submission that the learned trial magistrate erred by imposing the mandatory minimum sentence of twenty years imprisonment which was in his view unconstitutional lacks any legal basis. The sentence was lawful as it was in accordance with the law. The sentence is therefore upheld. 33. For all the above reasons, I have come to the conclusion that this appeal lacks merit and it is hereby dismissed in its entirety. It is so ordered. DATED, SIGNED AND DELIVERED AT MURANGA THIS 17TH DAY OF DECEMBER 2025. HON. C. W. GITHUA JUDGE In the presence of: The appellnant Ms. Muriu for the Respondent Ms. Susan Waiganjo, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18965/eng@2025-12-17 5

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