Joshua Mwiti v Republic

4. That the learned trial magistrate erred in matters of law and facts by failing to note that Birth Certificate was not availed before court to determine the age of the minor and age assessment was not done to prove the case. 5. That the learned trial magistrate erred in matters of law and facts by failing to note that the appellant herein was not subjected to medical examination. 6. That the learned trial magistrate erred in matters of law and facts by failing to note that the accused right to a fair trial under Article 50 of the Constitution of Kenya was infringed upon. 7. That he prays to be supplied with a copy of the certified lower court trial proceedings and judgement. 8. That he prays to be present during the hearing of this appeal in order to adduce more grounds and may this appeal be given the earliest date possible. 9. That he prays that this appeal to succeed, sentence quashed and he be set at liberty. 10. That the learned trial magistrate applied wrong principle during sentencing by meting out a manifestly harsh and excessive mandatory minimum sentence which was unconstitutional. 3. The appeal was canvassed by way of written submissions. 4. In his submissions, the appellant raised the broad themes that the prosecution case was not proved beyond reasonable doubt, the infringement of Article 50(2)(j) of the constitution for failure to be supplied with documents and the quashing of his defence without cogent reasons. 5. On their part, the Respondent maintains that there was no breach of the constitution, that the case was proved beyond reasonable doubt and that the Appellant’s defence was not cogent and did not establish reasonable doubts. It is also urged that the sentence herein be enhanced as the trial court should not have gone any lower than the minimum sentence provided in law. 6. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32. 7. It is necessary therefore to have a recap of the evidence at trial to facilitate its re-evaluation. 8. In a nutshell, the evidence on record is that PW1, a child of tender age as per the observation of the trial court gave a sworn statement after satisfaction of the court through a voir dire examination that she was intelligent enough and understood the meaning of an oath. It appears the court took this step out of abundance of caution as PW1 was beyond 14 years and the law as established does not necessarily require her to go through the examination. 9. She testified that on dates she could not recall she had sex with the Appellant on 2 occasions in his house and on another occasion, she had sex with one Duncan in Duncan’s house. On cross-examination, she stated she was 16 years old. It is her case that she knew the Appellant and that the Appellant was working as a watchman at an Indian’s place. 10. PW2 told the court that PW1, his daughter went missing. She was traced at the home of one of the men working for an Indian. He took the daughter to the police station and reported the matter. On cross examination, he stated that he did not find the daughter in the house of the Appellant but it was at an Indian’s place where the Appellant worked. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/85/eng@2026-01-15 2

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11. PW3 visited the scene and was shown the houses of 2 men who had defiled her on different days. One of the men was Douglas and the other was the Appellant. The two men were arrested and charged. On cross-examination, he stated that when he arrested the Appellant, the Appellant was alone in the house. 12. PW4 examined the complainant. She had a history of defilement. There was no injury on the genetalia A whitish foul smelling discharge was seen. Hymen was broken old. He produced a duly filled P3form and PRC form as exhibits. 13. PW5 escorted PW1 to Nanyuki Teaching and Referral Hospital for treatment. A P3 and a PRC form were filled. She then recorded witness statements and the 2 suspects were charged. 14. On being placed on his defence, the Appellant in an unsworn statement told the court that he was just arrested with no explanation given. He was charged. He did not know anything about this case. 15. I have had occasion to consider the evidence at trial. In so doing, I have taken cognisance that I neither saw nor heard the witnesses testify and have given due allowance for that fact. I have had due regard of the submissions made and case law cited. I have taken into account the applicable law. The broad issue for determination is whether the prosecution proved its case to the required degree. To answer this question, the court will have to scrutinize the evidence to find whether each ingredient of the offence was proved. 16. But before I delve into matters evidence, the Appellant has raised a constitutional issue regarding breach of Article 50(2)(j) on fair hearing. He asserts that he was not supplied with a PRC Form as well as a Birth Certificate for PW1. He urges that this was an affront to his right to a fair hearing. 17. Article 50(2)(j) requires that the Accused person be supplied with documents that the state intends to rely on. Consequently, if a document is not relied on against the Accused person, then there is no prejudice since the prosecution did not gain an advantage from the said document. 18. In this case no birth certificate was produced and /or relied on by the prosecution. The evidence of PW5 who was the Investigating officer was that PWl had no Birth Certificate. There was therefore no Birth Certificate to be supplied to the Appellant. Further, the prosecution's conviction did not emanate from a Birth Certificate as the Court relied on the fact that PW1 presented like a minor. The Birth Certificate was not evidence relied upon within the meaning of Article 50(2) (j) so as to be mandatorily supplied. 19. On the issue of the PRC Form, there appears no evidence on record that the same was supplied. What was however supplied was the P3 Form. Did this failure occasion injustice to the Appellant? I agree with the submission by the Respondent that no prejudice and/or failure of justice occurred by the non-disclosure of the PRC Form for reasons that the contents of the P3 and PRC Forms were similar. 20. PW4 informed the Court that the information in the P3 Form was transferred to the PRC Form. If then the information from the PRC was generated from the P3 Form, one would be on firm ground to argue that the information on the PRC Form was similar to that in the P3 Form, and that is why PW4 saw no need to go through the contents of the PRC Form during his testimony since he did so setting out those in the P3 Form. Secondly, since the Appellant had the P3 Form whose contents were part materia with those of the PRC Form, he had access to the nature of the evidence compiled against him. 21. Further, the conviction of the Appellant was not based on medical evidence. There was no clear medical evidence showing any injury or other relevant evidence of a defilement. It is trite law that prove of defilement is not dependent on medical evidence. The availing of the PRC form would have added no value to the defence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/85/eng@2026-01-15 3

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22. Finally, by dint of Section 382 of the Criminal Procedure Code, a conviction by a Court of competent jurisdiction is not reversible because of an omission in the proceedings where the said omission has not occasioned a failure of justice. 23. I now proceed to consider the prove of the charges. It is trite that for the charge of defilement to stand, the Prosecution must prove the age of the victim (must be a minor), that there must be penetration and a clear identification of the perpetrator. This is provided for under Section 8(1) of the Sexual Offences Act No. 3 2006. 24. It is trite law that where the actual age of the victim is not proved, the apparent age of the victim shall suffice. The Court of Appeal in Jackson Mwanzia Musembi v Republic [2017] eKLR quoted with approval its earlier decision in Evans Wamalwa Simiyu vs. R [2016] eKLR and held that:“ Consequently, where actual age of a minor is not known, proof of his/her apparent age is sufficient under the Sexual Offences Act.” 25. Further, in Thomas Mwambu Wenyi v Republic (2017) eKLR, the Court of Appeal cited with approval the case of Francis Omuromi Vs. Uganda, where the Court in Criminal Appeal No.2 of 2000 held that:“ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….” 26. On the evidence before court, I am satisfied age was proved. 27. On whether there was penetration of the complainant’s genetalia, the relevant evidence is that of PW1. She narrated how the Appellant lured her to his place where they ate ugali and slept. In the night, the Appellant did ‘‘tambia mbaya’’ to her. That he had sex with her. 28. This is uncorroborated evidence of a single witness as I note that the medical evidence just proved a broken hymen which was broken old and with no certainity that the same was broken on the material night. The fact of the matter is that PW1 was categorical that the Appellant did ‘tabia mbaya’ to her and she explained this to mean that he had sex with her. 29. In describing what the Appellant did to her, PW1 used euphemism to communicate with the Court by stating that the Appellant did ‘Tabia mbaya’ to her. She explained this to mean he had sex with her. Use of euphemism in description of sexual activities by minors has been accepted by courts and for good reason. In Muganga Chilejo Saha v Republic [2017] eKLR, the Court of Appeal rendered itself thus regarding proof of penetration by euphemism; ’Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room.. If the trend in the decided cases is anything go by, courts in this country have generally accepted to use of euphemisms like, ‘’alinifanyia tabia mbaya,’’ (ICVR, Kapenguria H.C Cr. Case. 11 of 2026), ‘’he pricked me with a thorn form the front part of this body,’’. (Samuel Mwangi Kinyati v R, Nanyuki HC. Cr. A No. 48 of 2015), ’’he used his thing for peeing’’. (David Otieno Alex v R, Homa H.C Cr Ap. No. 44 of 2015). ‘’he inserted his ‘’dudu’’ into my ‘’mapaja’’, (Thomas Alugha https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/85/eng@2026-01-15 4

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Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. (Emphasis supplied) 30. In Wachira V Republic (Criminal Appeal E024 of 2023) [2024]KEHC 5972 (KLR) (24 May 2024) (Judgment), this court appreciated the impact of developmental stages in children and how the same might affect their ability and willingness to describe sexual organs and acts. The court stated thus; ‘’What is the rationale of acceptance of such euphemises? I think the answer may not require any scientific research. The evidence of a child in a sexual offence case presents obvious discernible peculiar difficulties. Number one, the level of communication skill is still at its development stage and one may have to be extra keen to decipher what the child is communicating and certainly the trauma arising from the incident and the expected timidity of a child among strangers in a court setting cannot be ignored” 31. This, as alluded to earlier, is the evidence of a single witness. The requirement for corroboration in sexual offences cases is waived under section 124 of the evidence Act. The trial court fully appreciated the law on the matter and correctly placed reliance on the decision of the court of appeal in JWA V Republic [2014]eKLR. 32. The prerequisite requirement before the trial court can rely on such evidence of a single witness to convict is that the trial court must satisfy itself and pronounce itself on the fact that the witness was truthful and record reasons for arriving at that conclusion. 33. In this particular appeal, the record of the trial court, which court had the benefit of seeing and hearing the witnesses testify including reading their demeanor was satisfied that the witness was truthful and it recorded the reasons for such belief. Upon re-evaluation of the evidence, I find no basis upon which to interfere with the trial court’s finding that the Appellant penetrated the complainant. 34. On the question of identification, PW1’s evidence clearly shows that the Appellant was someone she was familiar with. She knew where he worked as a watchman. She went to his house on 2 occasions spending the whole nights with the Appellant. 35. In rebutting the evidence, the Appellant in an unsworn statement told the court that he was just arrested with no explanation given. He was charged. He did not know anything about this case. 36. The prosecution bore the duty to prove its case beyond reasonable doubt and the Appellant shouldered no burden to prove his innocence. Where an accused denies an offence and the prosecution has laid out cogent evidence on his culpability, the accused must lay a factual basis for supporting the denial which basis would displace an otherwise cogent prosecution case. 37. The Court of Appeal in Kiarie v Republic [1984] KLR 739 held that an accused person’s defence must be weighed against the prosecution evidence, and where the defence raises allegations such as fabrication, malice, or grudges, there must be some evidence to support such claims. A defence based on mere allegations, unsupported by evidence, does not raise a reasonable doubt. 38. Similarly, in Muiruri v Republic [1980] KLR 70, the court stated that where an accused alleges a frameup or personal grudge, he must demonstrate circumstances showing motive, conduct, or prior hostility on the part of the complainant or investigators sufficient to suggest fabrication of charges. 39. Our courts have further held that the prosecution is not required to disprove speculative claims of malice or grudges. In Joseph Maina Mwangi v Republic [2000] eKLR, the Court of Appeal emphasized that bare allegations of ill-will or grudges, without evidential backing, cannot be a basis for rejecting credible prosecution evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/85/eng@2026-01-15 5

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40. I would, for good measure, add that, a bare denial like in the present case where the Appellant states he was just arrested with no reasons given and he was charged cannot amount to an effective defence in light of the evidence on record. Without shifting the burden of proof, the Appellant ought to have explained why the complainant would just pick on him among so many other people in the locality and frame him. The credibility of the complainant’s evidence is affirmed by the fact that she was candid that the sex was consentual and therefore the relationship between her and the Appellant was a cordial one and with no rebuttal to her evidence, the identification of the Appellant as the perpetrator of the offence is complete. 41. Though I note that the Respondent has addressed the issue of the legality of the sentence meted out on the Appellant, the Appellant has not raised the issue either in his grounds, amended grounds or in submissions perhaps informed by the fact that he is aware he was given a lesser sentence than that provided in law. 42. The Supreme Court did settle the uncertainty surrounding the application of mandatory minimum sentences in the case of R V Joshua Gichuki Mwangi & Others-Petition No.E018 of 2023. The appellant is lucky to have escaped with a sentence of 12 years imprisonment. The law provides for a sentence of 20 years imprisonment. 43. This court has the jurisdiction to enhance the sentence to meet the legal threshold. I however note that there was no notice of enhancement served on the Appellant and am reluctant to take this route. I will let the matter lie. 44. In the end, I make a finding that the appeal herein has no merit and is dismissed in its entirety. DATED SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JANUARY, 2026. A.K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/85/eng@2026-01-15 6

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