Evans Muteithia Juma v Republic

7. i. That the learned trial magistrate erred in matters of law and fact by failing to notice that the identification of the appellant as the person who actually defiled the complainant was not proved to the required standard in law. ii. That the learned trial magistrate erred in matters of law and fact by failing to notice that the Prosecution did not prove their case beyond reasonable doubt. iii. That the learned trial magistrate erred in matters of law and facts by failing to notice the credibility of the prosecution key witness (PW1) was doubtful and her evidence should not have been relied upon to convict the appellant. iv. That the learned trial magistrate erred in both matters of law and fact by admitting uncorroborated evidence which was marred with a lot of contradictions. v. That the learned trial magistrate erred in matters of law and fact by failing to notice that the clinician’s evidence was not conclusive enough to prove the ingredient of penetration by the appellant. vi. That the learned trial magistrate erred in matters of law and fact by failing to notice that the charge sheet was defective hence the appellant was not properly charged with the correct section of the law. My duty as the first appellate court is to carefully examine and evaluate the evidence which was presented before the trial court and come up with my own independent decision. This duty was restated in the case of Kiilu & Another-v- Republic (2005) 1 KLR 174 where the Court of Appeal held as follows:“ 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 weight conflicting evidence and draw its own conclusions. It is not the function of a 1st appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion. It must itself make its own finding. 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 advantage of hearing and seeing the witnesses.” The Prosecution Case 8. The Prosecution’s case was that the complainant (PW1) was tending millet on their farm around 8.00am when the Accused approached her and requested her to have sex with him. From her evidence, she agreed and they undressed and had sex after which they parted. That when her mother asked her where she had been, she told her that she had had sex with a stranger. 9. Her mother(PW2) quickly took action and escorted her to Gatunga Police station where a complaint was filed. She was examined at Marimanti Level 4 hospital. The Clinical officer (PW3) found evidence of penetration. Thereafter the Accused was arrested and charged. The Prosecution also led evidence to show that the complainant was 15 years old at the time. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19589/eng@2025-05-30 2

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The Defence Case 10. The Accused made a sworn statement and denied the charge. He stated that he was a herder and that between Thursday and Saturday, he had attended a function away from his employer’s home. That when he came back, he was woken up and arrested by police at around 2.00am and taken to the police station. 11. As already stated the court after considering the evidence, found the Accused guilty of the main count and sentenced him to 20 years’ imprisonment. The Appellant’s submissions 12. In his submissions dated 13th March, 2025, the Appellant stated that the Prosecution did not prove its case beyond reasonable doubt as the evidence was not enough to sustain a safe conviction. He submitted that he was not properly identified as no identification parade was conducted. 13. The Appellant further submitted that the Prosecution evidence was contradictory and inconsistent. He pointed out that PW1 said that her mother saw them having sex but at the same time said that her mother met the stranger who was walking away. He stated that the court ought not rely on the evidence of PW1 as she was an unreliable witness. 14. The Appellant submitted that there was no corroboration of PW1’s evidence as the medical evidence was wanting. 15. Finally, on age, the Appellant submitted that the complainant was more than 15 years old having been born on 22nd September 2007 and he ought therefore to have been charged under Section 8(4) which has a sentence of 15 and not 20 years. He prayed that the Appeal be allowed. The Respondent’s Submissions. 16. The Respondent’s submissions were dated 18th March 2025. They submitted that all ingredients of the offence were proved to the required legal standard. 17. With respect to penetration, they submitted that the complainant’s testimony was corroborated by medical evidence as entailed in the PRC (Exhibit 2) and P3 Form [Exhibit 3] respectively 18. On the age of the victim, they submitted that Exhibit and which was the complainant’s Birth Certificate showed that she was 15 years old. 19. On identification, the Respondent’s submitted that the Appellant was properly identified as he was well known to the victim because they were neighbours. 20. With respect to sentence, the Respondents’ submitted that the sentence was lawful and urged the court to uphold it. Issues for Determination 21. I have considered the trial court’s proceedings, the grounds of Appeal, and the respective submissions of the parties. The following issues arise for my determination:i. Whether the Prosecution proved its case beyond reasonable doubt. ii. Whether the Appellant’s defence placed doubt on the Prosecution case. iii. Whether the Sentence preferred against the Appellant was lawful, appropriate, just and fair. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19589/eng@2025-05-30 3

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Whether the Prosecution proved its case beyond reasonable doubt. 22. It is trite law that for the offence of defilement to be established, the age of the victim, penetration and positive identification or recognition of the offender must to be proved. Age of the complainant. 23. Proof of age is a critical ingredient as the offence of defilement carries the definition of having carnal knowledge with a child. A child by law is any person under the age of 18 years. In Mwalengo Chichoro Mwajembe vs. Republic, Msa. App. No. 24 of 2015 (UR), the Court of Appeal held: ‘‘ …………..the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa - vs – Republic, Criminal Appeal No. 19 of 2014 and Omar Uche Vs Republic, Criminal Appeal No. 11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond reasonable doubt. This form of proof is a direct influence by the decision of the Court of court Appeal of Uganda in Francis Omuroni is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable…………’’ 24. In defilement cases, the age of a victim is an important ingredient to be considered when deciding the penalty to be meted out to an Accused person. The age of the victim is primarily proved through the production of a Birth Certificate or other credible evidence. Rule 4 of the Sexual Offences Rules of Court 2014 provides that:“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.” 25. In this case, the victim (PW1) testified that she was born on 22nd September, 2007 and that she was 16 years old. She identified her Birth Certificate (PMFI 1) which was later produced by the Investigating Officer (PW4) as Prosecution Exhibit 1. 26. The Appellant urged that the victim was 15 years, 4 months which to him meant she was above 15 and that he should have been charged under Section 8(4) with the attendant sentence being 15 years and not 20 years imprisonment. 27. I have looked at Exhibit 1. It shows that WN was born on 22.9.2007. This shows that she was 15 years and 7months old at the time of the offence on 3rd February, 2023. The Appellant’s argument however does not hold as she had not attained the age of 16 years. 28. It is my finding that the Prosecution proved the age of the victim. She was 15 years old and the Accused was properly charged under section 8(3) of the Sexual Offences Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19589/eng@2025-05-30 4

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Penetration 29. With regard to penetration, Section 2 of the Sexual Offences Act defines penetration as ‘the partial or complete insertion of genital organs into the genital organs of another person’. The Prosecution had to prove penetration or act of sexual intercourse to sustain a charge of defilement. Penetration is proved through the evidence of the victim corroborated by medical evidence. 30. It is also worth noting that Section 124 of the Evidence Act empowers a trial court to convict on the sole evidence of a victim provided the court was satisfied that the victim was truthful and records in the proceedings the reasons for believing the victim. Section 124 provides: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, 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.” 31. In this case, the victim PW1 testified that she was in the farm tending the family’s millet when a stranger showed up and asked her for sex and she agreed. That she removed her clothes and he removed his and they proceeded to have sex in the shamba. That they were there between 8.00am and 9.00am. PW1 further testified that when they were through and the stranger was leaving, her mother arrived near the scene and met the stranger going away but did not talk to him. That her mother saw her and asked her where she was and she admitted that she had been with the stranger and had had sex with him. Her mother then escorted her to Gatunga Police station to make a report and later to Marimanti Level 4 hospital. 32. Lilian Wahuia (PW4) was the clinical officer who examined the complainant. She testified that she examined PW1 on 3rd February, 2023 and observed that PW1 had a long standing broken hymen. That there was soil in her private parts and a vaginal swab showed the presence of sperms and epithelial cells. PW4 produced the P3Form (Exhibit 3) and PRC Form (Exhibit 2). 33. The Appellant has argued that the evidence of the complainant was not credible. That she gave contradictory evidence that her mother met him on the way away from the scene and also stated that she found them having sex, and later stated that her mother did not see them having sex. 34. I have closely looked at the evidence of PW1. She was consistent that they had sex with a “stranger” at the shamba. She had no reason to lie to her mother that she had just engaged in sexual intercourse. What the Accused raises as contradictory evidence is her statement that they were seen by her mother. While it is true that the record shows that she said that her mother met the stranger going away, and also stated that her mother saw them having sex, I consider the contradiction immaterial as it does not affect her testimony that she was defiled. 35. In so dealing with the evidence, I am guided by the Court of Appeal in Jackson Mwanzia Musembi vs Republic, (2017) eKLR where it cited with approval the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19589/eng@2025-05-30 5

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Ugandan case of Twahangane Alfred Vs Uganda, Cr. Appeal No. 139 of 2001( 2003) UG CA,6 where the court held that: “ …with regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” (Emphasis mine) 36. I have keenly considered the medical evidence given by PW4. She examined the complainant soon after the event. She found evidence of penetration which she documented in the PRC and P3 Forms. I have looked at the PRC Form (Exhibit 2) it contains examination notes which state that the complainant had no hymen but not freshly broken; had no signs of struggle and there was presence of numerous epithelial cells. 37. From the evidence above, I find that the fact of penetration was proven beyond reasonable doubt. The complainant testified that she had had sex, and upon examination the medical evidence shown above, corroborated her evidence. The presence of epithelial cells showed recent sexual activity. Identiffcation of the Appellant. 38. The Appellant urged that there was no evidence linking him to the defilement. He submitted that no identification parade was held to identify the perpetrator. The Respondents on the other hand submitted that the Appellant was clearly identified as he was a neighbour to the complainant. That it was a case of recognition not mere identification. 39. It is trite that evidence of identification should be examined carefully to avoid cases of mistaken identification. This caution was restated by the Court of Appeal in the case of Cleophas Wamunga vs. Republic (1989) eKLR expressed itself as follows:“ 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……” 40. I have closely examined the identifying evidence. PW1 did not name the Appellant. In court she said that she did not know Evans Mutheithia. She referred to him as a stranger. However, from her testimony, it was clear who the stranger was. She testified that her mother saw him and followed him to his employer’s home. When cross- examined by the Accused, she stated “you were staying with my uncle HK for about 4 months. I saw you on the day we had sex. You talked to me for about 2 minutes, and we were together from 8.00am to 9.00am. You were near me, and we had sex….” 41. I have also considered the evidence of PW2, the Complaint’s mother. She testified that she was a teacher at T.A Academy and had gone to school and returned that morning to go and prepare PW1 for Form 1 shopping. That when she got home, she was told that her daughter was at the shamba, and on going there, she saw the Appellant leaving from the back of an abandoned house in the shamba from where her daughter also shortly emerged. That on questioning the daughter, she admitted that she had sex with the Appellant whereupon she quickly followed him to his employer’s home where she found him taking tea. 42. From the evidence above, it was clear that PW1 knew the Appellant. Their familiarity went beyond the material date. The complainant stated that they talked for 2 minutes and quickly disappeared into the shamba. To the mind of the court, that is not the conduct of persons who were strangers. Secondly; the victim’s mother PW2 followed the Appellant to his place of employment. She stated that he was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19589/eng@2025-05-30 6

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employed as a herder by her cousin, one HK. Clearly, this was a person known by both the complainant and her mother. He was not a stranger at all. The circumstances under which he was found adequately corroborate the complainant’s evidence that he was the one who had sexual intercourse with her. 43. In the case of Peter Musau Mwanzia vs.Republic (2008) eKLR, the Court of Appeal expressed itself as follows:“ We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for sometime, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident……” 44. From my analysis of the evidence above, I am satisfied that the Prosecution proved the identity of the Appellant as the perpetrator beyond reasonable doubt. Having been proven to be a person very well known to the Complainant and her mother, there was no need for an Identification Parade. He was a neighbour and the surrounding circumstances also show that he was caught leaving the scene. The offence occurred in broad daylight between 8.00am and 9.00am. and therefore the conditions of identification were favourable. 45. It is my finding therefore, upon my reconsideration of the evidence before the trial court, that the Prosecution proved all the ingredients of the offence beyond reasonable doubt. Whether the Appellant’s defence placed doubt on the Prosecution’s case. 46. The Appellant stated in his defence that he was Evans Juma, a herder. That he was not at home at the material time as his boss had given him permission to be away from Thursday to Saturday. He said that the mother of the victim went to his boss’s home to ask for his boss and he told her that he was away until Monday. That he prepared food, ate and slept only to be woken up by police officers at night. 47. Cross - examined, the Appellant admitted that he knew W.N. the victim. He also admitted that he knew M, who was WN’s mother. He stated that M and his boss’s wife did not see eye to eye but he did not know why he was the one who was arrested. 48. I have considered the Appellant’s defence. He makes critical admissions that he knew PW1 and PW2 which lends credence to their evidence of identification. His defence was incoherent in trying to bring in people who were neither parties nor witnesses to the case. It was also a poor attempt at an alibi which did not displace the Prosecution evidence that he was at the scene. 49. Following my analysis of the Appellant’s defence as a whole, it is my finding that his defence was weak and did not cast any doubt on the Prosecution’s case which I have already found proven. His incoherent defence was simply not true. 50. It is my finding that the Appellant was properly convicted which conviction I affirm and uphold. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19589/eng@2025-05-30 7

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Whether the Sentence preferred against the Appellant was just and fair. 51. The penal section for this offence is found in section 8(3) of the Sexual Offences Act which states that:A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. From the wording above, the sentence was a minimum sentence. 52. I have however reconsidered the sentence in view of the circumstances of the case and the age of the Appellant. From the record, it was clear that the Appellant and PW1 were in an unlawful but ‘‘consensual’’ sexual relationship. PW1 told her mother that it was not the first time she had had sex with the Appellant. The attending Clinical Officer (PW3) noted in the PRC form that PW1 was sexually active basing her observation on a long standing broken hymen. 53. With respect to the sexual intercourse leading to the present proceedings, PW1 stated categorically that the Appellant approached her for sex and she accepted and they went and executed their unlawful desire in the shamba. She attempted to shield his identity in court when she first stated in her examination in chief that ‘I do not know EM’ only to identify him in the course of her testimony in cross – examination. 54. I have considered that the victim PW1 was over 15 years going to 16 and, in the evidence of her mother, she was about to join Form One. On the other hand, the Appellant was not school going and was working as a herdsman for PW2’s cousin who lived about 500 metres from the complainant’s home. When first arraigned in court, the court observed that he may have been underage and ordered an age assessment. 55. In sentencing the Accused, the trial court stated: “The victim and the Accused person are teenagers for all intents and purposes and would easily fall in the ‘Romeo and Juliet’ bandwagon, except that the accused is about 3 years older than the victim” 56. I have looked at the age assessment report dated 14th February, 2023 presented to court. It indicates that the Accused “has a dental age of 18 – 19 years.” The age assessment report was not produced by the examining doctor who would have explained his report and also guided the court on whether the Accused had just turned 18, in which case he would have been under 18 at a time of commission of the offence, or was closer to 19. With the lower age of 18, the age difference between the Accused and the complainant would significantly narrow, bringing the case within the ‘Romeo and Juliet’ category alluded to by the trial court. It was upon the prosecution to prove that they were prosecuting an adult and upon the trial court to satisfy itself that an appropriate sentence under the law was meted out if the Accused was a minor at the time of the commission of the offence. 57. I would in the circumstances grant the Appellant the benefit of doubt on his age and sentence him under the provisions of the Children’s Act. Consequently, while I uphold the conviction, I find it just and fair to interfere with the sentence as a matter of law. 58. I however find that the Appellant has already crossed the age of majority making a sentence under the Children Act untenable. He has also already served two years and four months in prison. I consider the custodial period served sufficient. 59 . In the result, I uphold the conviction. I set aside the sentence and substitute therefore the period already served. The Appellant is set at liberty forthwith unless otherwise lawfully held. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19589/eng@2025-05-30 8

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Orders accordingly. JUDGEMENT DELIVERED, DATED AND SIGNED THIS 30TH DAY OF MAY, 2025. ........................ R. LAGAT-KORIR JUDGE Judgement delivered in the presence of the Appellant acting in person and Ms. Rukunga for the Respondent; Muriuki (Court Assistant.) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19589/eng@2025-05-30 9

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