Mwova Mwende v Republic

3. 4. That the Hon. Trial court magistrate erred in law and fact by failing to fin that the witnesses in this case were incredible witnesses whose evidence could not be used to base a conviction. 5. That the Hon. Trial court magistrate erred in law and fact in convicting the appellant based on the complainant’s single evidence without giving the reason for her believing in the said complainant’s testimony as the same time declaring the complainant as a hostile witness. 6. That the Hon Trial court magistrate erred in law and facts by convicting the appellant on the prosecution evidence which did not prove the offence of defilement that is penetration. 7. That the Hon. Trial court magistrate erred in law and facts by failing to consider that the complainant and the appellant were taken to the police station at the same time an only the complainant took medical examination, which was prejudicial to the appellant’s access to justice for the truth to be known. 8. That the Hon. Trial court erred in law and facts by pronouncing a harsh and excessive mandatory minimum sentence of twenty years without considering the appellant’s mitigation and also the probation report produced. 9. That the Hon. Trial court magistrate erred in law and fact by relying only on the medical report while no DNA was conducted between the complainant and the appellant. 10. That the Hon. Trial court magistrate erred in law and fact by failing to consider the mitigation factors raised by the appellant. 11. That the Hon. Trial court magistrate erred in law and fact when it conducted hearing in open court as opposed to chamber due to the declared age of the complainant which again led to the prosecutions belief that the complainant was hostile hence declaring her as hostile witness. The appellant prays that the appeal be allowed, the conviction and sentence be set aside. The appellant be set at liberty unless he is otherwise lawfully held. The respondent opposed the appeal and prayed that it be dismissed. The Prosecution’s Case 4. PW1 J.K.K is the complainant. She gave her date of birth as 24/10/2004. She testified that on 10/11/2020 at 5.00pm she was collecting firewood in the shamba when the one M who she did not know before met her there and told her to accompany him to his home. She agreed and went to his house on a Sunday. They reached the appellants home at 7.00pm and she stayed there upto 16/11/2020 when her parents went for her and took her to Katulani Police Station and told them she was found with a boy. The prosecution at that point applied to treat her as a hostile witness. The court ordered that she be treated as a hostile witness. 5. Thereafter she testified that she had recorded a statement with Police and stated that they had sex on Saturday and Sunday. That it was the first time to have sex. In cross-examination she told the court that she had seen the accused for the first time that day and had sex on Saturday and Sunday. 6. PW 2 JNK was the grand mother of the complainant and lives with her as she is orphaned. She told the court that on the material day she had sent the complainant and two others Kaavesa and Lydia to go and collect firewood but the complainant did not return home. She was informed that the complainant had gotten married. On 16/11/2020 she went to look for her and found her in the Shamba with the appellant who told her that she had married her. She then went and reported at Katulani Police Station. P3 told the court that the complainant was sixteen (16) years old and in form one. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 2

page 2 of 10

7. PW2 JNK corroborated the testimony of Pw3. PW4 – James Mulu of Katulani Sub-county Hospital. He testified that he is a clinical officer at the said hospital and had worked with Grangs David wo was an intern and he could read his handwriting and identified his signature. The court allowed him to produce the P3 form which was filled at the hospital by the doctor. According to the doctor, the hymen was broken. Pregnancy was negative. There was no infection in the urine and HIV test was negative. He testified that the missing hymen was prove that there was sexual intercourse. He produced the P3 form as exhibit 1 and PRC (Post Rape Case) Form as exhibit 2. 8. CPL Jonathan Mbuko of Katulani Police Station testified that he received the report on 16/11/2020 at 2.00pm from the Chief Katulani. He went and met the complainant and the appellant. He took them to the police station and booked the report. The complainant was escorted to Katulani Hospital. 9. PW6 PC Charles Kemboi of Itoleka Police Station testified on behalf of the investigating officer who was transferred to Siakago Police Station. He testified that the officer received the P3 form and Post Rape Case Form and a birth certificate. He testified that the complainant was sent to the farm to collect firewood and while there the appellant met her and convinced her to g to his house and live as husband and wife. The complainant did not go home. The matter was reported to the police and they were both arrested. The appellant was then charged. Defence Case 10. The appellant gave a sworn defence and told the court the complainant went to him looking for a job. He agreed to give her work to plant for him. He went with her to the farm and later went home. Police went there and arrested him and the complainant. He was taken to the police station where he was charged. The complainant said she had not been defiled by anybody. He was then charged. He told the court that the complainant had never slept in this house. Court Decision 11. The learned magistrate held that the age of the victim was proved. That medical evidence proved penetration and the accused was identified as the perpetrator. She held that the charge of defilement was proved beyond any reasonable doubts. He convicted him and sentenced him to serve twenty (20) years imprisonment. The appeal was canvassed b y way of written submissions. Appellant’s Submissions 12. He submits that the duty of the first appellate court is to re-evaluate the evidence and come up with its own independent find as stated in Okeno v Republic (1972) EA 32 where it was held that, “ An appellant on first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Padya v R (1957) EA 336) 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. Shantilal M. Rulwala v Republic (1957) EA 570. It is not the function of the first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions it must make its own finding and draw its own conclusions. Only then can it decide whether the Magistrate’s finding should be supported. In doing so, it must make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.” 13. He further referred the court to the case of Mark Owuri Mose v Republic Criminal Appeal No. 295/2012 for the same proposition. On penetration, it was submitted that it is the central and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 3

page 3 of 10

indispensable ingredient of the offence of defilement and the burden rests on the prosecution to prove it beyond any reasonable doubts. It is submitted that penetration was not proved as the prosecution only relied on the testimony of the complainant and the medial evidence was not conclusive. That there was no evidence to link the appellant to the offence in the absence of DNA test. 14. That broken hymen can come from none sexual activities such as sports, bicycle riding, accidents or natural causes. That no injuries were noted on the entire genitalia, vagina and the cervix. That there was no discharge or infection and so there lacked solid evidential foundation to warrant the conviction. He relies on David Mwirigirwa v Republic 2017 eKLR where the court of Appeal held that: “ we think it was an error for the learned Judge to form a firm conclusion of defilement from the fact alone of broken hymen.” 15. Also relies on Nyambura v Republic (Criminal Appeal No. E011/2021) (2022) KEHC 12721 KLR 1. He further relies on PKW v Republic (2012) eKLR, court of Appeal where court held that the absence of hymen is not definitive evidence of defilement. Also relies on PGM v R (Criminal Appeal E024 of 2024) (2025) KEHC 3035 (KLR) where court found that the prosecution failed to link the broken hymen and the alleged defilement. Also relies on Woolimington v DPP (1935) AC 462 PP 481 on the burden of proof. 16. On whether the age of the complainant was proved it is submitted that the age was not as no birth notification, birth certificate, baptism and immunization car, age assessment report, vaccination card or school admission records. He relies on Elias Kasomo v Republic (Malindi) Criminal Appeal No. 504/2010 where the court held that: “ The age of a minor is an element of a charge of defilement which ought to be proved by medical or birth certificate or baptism card which would be more useful.” That there were contradictions on the age of the complainant and the age was not proved to the required standard. 17. On the evidence, it is submitted that the prosecution relied on contradictory evidence and the declaration of the main witness as hostile witness by the court. It is submitted that there was no material laid before the court to declare the witness hostile. That where a witness is declared hostile, her evidence must be treated with caution. The value of such testimony is not presumed but must be carefully scrutinized. That courts have treated such witness as unreliable. He relies on Ekarot v Republic (2024) KEHC 4100 KLR. It is submitted that the court should have been left with reasonable doubt due to the hostile nature of her testimony. 18. On sentence it is submitted that it was harsh and excessive. He relies on the Supreme Court decision in Francis Karuko Muruatetu v Republic Pet. No. 15/2015 which set out the guidelines on sentencing as follows: “ (71) The following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of murder charge. a. Age of the offender b. A first offender c. Plea of guilty d. Character and record of the offender. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 4

page 4 of 10

19. e. Commission of the offence in response to gender-based violence. f. Remorsefulness of the offender g. Possibility of reform and social re-adaption of the offender. h. Any other factor that court considers relevant.” The appellant submits that the age of the complainant was not established and the court meted a harsh and excessive evidence. That the appellant’s mitigation was not considered. The appellants pleads that appeal be allowed and he be set at liberty. Submissions by the Prosecution 20. The respondent submits that the appeal ought to be dismissed. The prosecution submits that penetration was proved. That under Section 2(1) of the Sexual Offences Act penetration is defined as, “means the partial or complete insertion of the genital organ of a person into the genital organs of another person.” That genital organs are defined as “Incudes the whole or part of male or female genital organs and for purposes of this Act includes the Anus.” 21. The respondent relies on Mark Oururi Moses v Republic (2013) eKLR where the Court of Appeal stated that: “ Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed, so long as there is penetration whether only on the surface. The ingredient of the offence is demonstrated and penetration need not be dep inside the girls organ.” 22. That the complainant stated that she had sex with the appellant on Saturday and Sunday and that the evidence was corroborated by medical evidence which was that there were no visible vaginal tears on the victim but the hymen was broken which was evidence of sexual intercourse. It is submitted that there was prove of penetration corroborated by medical evidence. Age of the Complainant 23. It is submitted that age is a core ingredient of the offence of defilement. He relies on Edwin Nyambogo Onsongo v Republic (2016) eKLR where the court stated that age can be proved in various ways including by way of documents, birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or evidence of the parents or guardian or medical evidence. That the complainant said she was born on 24/10/2004 and her guardian stated that she was sixteen years old. That the age of the complainant was sixteen years and therefore a child. 24. Positive identification of the assailant It is submitted that in Kariuki Njiru & 7 Others v Republic, Criminal Appeal No. 6/2001 unreported it was stated: “ The law on identification is well settled and this court has from time to time said that the evidence relating to identification must be scrutinized and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 5

page 5 of 10

25. That the victim had stated that she had been connected to the appellant by a relative. That the appellant was identified in court by the complainant and therefore the identification was positive. On the defence of the appellant the respondent submits that the allegations by the appellant were not substantiated and did not water down the respondent’s case. On the sentence the respondent submits that the learned magistrate held that the charge should have been under Section 8(7) as read with Section 8(4) which provides for a minimum sentence of fifteen years. That the sentence imposed was neither harsh nor excessive. The appellant was convicted on the basis of sufficient and conclusive which met the standard of proof beyond any reasonable doubts. That the court should uphold the conviction and the sentence. Analysis and Determination 26. 27. I have considered the proceedings and the Judgment of the learned Magistrate. I have also considered the submissions by the counsels appearing for the protagonist parties. I have also considered the grounds of appeal. The counsel for the appellant has identified five issues for determination. I will reduce them into three as follows: 1. Whether based on the evidence, the prosecution proved the ingredients of the charge beyond any reasonable doubts. 2. Whether the sentence was harsh and excessive. Whether the prosecution proved the charge beyond any reasonable doubts. The accused was under Section 8(1) & (3) of the Sexual Offences Act. The particulars were that on 10th November 2020 at 1600Hours at [particulars withheld] Village Kisasi Location in Kisasi SubCounty within Kitui County, intentionally caused his penis to penetrate the vagina of the JKK a child aged sixteen (16) years. Section 8(1) & (3) of the Sexual Offences Act is preferred where the victim is between (12) and fifteen (15) years. Based on the stated age of the complainant, the charge sheet had a defect. A defect on the charge sheet does not vitiate a trial. If the person charged was not prejudiced or embarrassed. From the record of the lower court, the appellant did not raise the issue of the defect on the charge sheet. The trial started and was concluded without any amendment. It is the learned trial magistrate who at the stage of giving her verdict realized that the appellant was charged under the wrong Section and sought to correct the anomaly. Section 382 of the Criminal Procedure Code (Cap 75 Laws of Kenya) comes to the aid the charge sheet by way of salvaging it. Under the Section the trial shall not be affected by a defect on the charge if the accused person did not raise the issue during the trial. The Section provides: “ Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 6

page 6 of 10

28. The accused was not prejudiced because at the end of the trial he was convicted and sentenced under the correct provisions. Section 8(1) and (4) of the Sexual Offences Act provides: “ 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.” 29. The appellant was sentenced to serve twenty years which was a lawful sentence under Section 8(4) of the Sexual Offences Act. The appellant did not challenge the charge sheet during trial. I find that he was not prejudiced any was. The defect on the charge is used under Section 382 of the Criminal Procedure Code (Supra). The appellant was charged with defilement. The ingredients of the charge which the prosecution had to proof are: 1. Penetration 2. Age of the victim 3. Positive identification of the perpetrator Penetration 30. Penetration is the key ingredient of the charge which should be proved beyond any reasonable doubts. If it is not proved the need to prove the remaining two does not arise. Penetration is defined under Section 2 of the Sexual Offences Act (Supra) as the partial or complete insertion of a person’s genital organ into the genital organ of another person. Thus, penetration need not be complete, partial or complete insertion is sufficient to prove penetration. Penetration is proved by the testimony of the victim and corroborated by medical evidence. See Sammy Charo Karao v Republic (2020) eKLR. 31. In this case the complainant gave evidence of penetration. Whatever evidence the prosecution wishes to rely on, it must be such that it is sufficient and credible to proof the charge beyond any reasonable doubts. The complainant testified that she went to the home of the appellant on 10/11/2020. She told the court that she slept at the appellant’s grandmother’s house while the appellant slept at his house. The parents took them to Katulani Police Station and they were interrogated. Upto that point she did not inform court that she was defiled. The prosecution applied to treat her as a hostile witness. She was then confronted with the statement which she recorded at the police station and she stated that she told police that they had sex. 32. She said she had on Saturday and Sunday. That was her first time to have sex. Her statement which she recorded with police was not produced as exhibit. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (2014) KECA 782 KLR the court of Appeal had this to say on the evidence of a hostile witness should be approached is well settled, that the patent deficiency of credit on the past of the witness was bone in the mind and resolved. 33. In Kiilu & Another v Republic (Criminal Appeal 113 of 2001) (2005) KECA 335 KLR the Court of Appeal held that: “ A witness upon whom reliance was proposed should not make an impression in the mind of the court that he was not straight forward person or raise a suspicion about his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 7

page 7 of 10

trustworthiness, or do (or say) something which indicated that he was a person of doubtful integrity and therefore an unreliable witness which me it unsafe to accept his evidence.” 34. A hostile witness is one who testimony on direct examination is adverse to the party who called him. The party applies to cross-examine the witness to establish that the witness retracted his previous statement. The cross -examination is to test the credibility, accuracy and veracity among other things. If it is shown that her credibility is wanting the witness is treated as a hostile witness. The complainant became hostile in her own case. She may have done so with intention to assist the appellant. Her credibility was wanting requiring corroboration. The fact of penetration is proved by the testimony of the complainant and corroborated by medical evidence and also to some extent by circumstantial evidence from witnesses. 35. In this case a P3 form was produced by PW4 who said he had not worked with Grangs David Ngala. He did not know him. He said he was told he was an intern. He said he could read his had writing. He was called to produce evidence under Section 33 of the Evidence Act (Cap 80 Laws of Kenya). His whereabouts were unknown. Section 33 of the Evidence Act provides: “ Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases— (a) relating to cause of death when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; (b) made in the course of business when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him; (c) against the interest of maker when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages; (d) an opinion as to public right or custom when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 8

page 8 of 10

(e) relating to existence of relationship when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons at whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised; (f) relating to family affairs when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised; (g) relating to a transaction creating or asserting, etc., a custom when the statement is contained in any deed or other document which relates to any such transaction as is mentioned in section 13(a); (h) made by several persons and expressing feelings when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.” 36. The Section refers to admissibility of evidence made by persons who, is deceased, cannot be found or is otherwise unavailable to testify in later proceedings. No proper basis was made for failing to call the maker. Furthermore, PW4 did not know the person who filled the P3 form. PW4 gave hearsay evidence that the used to wok at the hospital. He further sated that the person who filled the P3 form was an intern. There is a question at to whether he was qualified to fill the P3 form. 37. Be that as it may, to me the P3 form does not state that the hymen was broken. Section ‘C’ states nature of offence is rape which cancelled and not counter signed and defilement added. Part C (a) reads Labia Majora, labia minora vagina & cervix are all intact, no tears. b) There is no discharge blood, venereal infection. This piece of evidence does not corroborate the evidence of penetration. I find that the PW1’s testimony was not credible and therefore treated as hostile. The question is whether she indeed told the truth in court that she never slept with the appellant. Thus, turn of event raises doubts in the testimony of PW1 and had court to find that the defence of the appellant which was sworn could as well be truthful. I should further point out that penetration was not proved beyond any reasonable doubts. The appellant is entitled to the benefit of doubt. Having found that penetration was not proved, I need not consider the other ingredients save to say that the appellant admitted that eh complainant had given to his home looking for work so they were not strangers. The age was assessed on the P3 form as sixteen years and noting much arises from that. In any case the age stated was within the range of sixteen to seventeen years provided under Section 8(4) of the Act. Finally, the sentence imposed was lawful. 38. Disposition For the reasons stated, the charge was not proved beyond any reasonable doubts. The appellant was entitled to an acquittal. I find that the appeal has merit. I allow the appeal. The conviction and sentence is set aside. The appellant is set at liberty unless he is otherwise lawfully held. DATED, SIGNED AND DELIVERED AT KITUI THIS 6TH DAY OF NOVEMBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 9

page 9 of 10

HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19568/eng@2025-11-06 10

page 10 of 10