Fmp v Republic

8. The complainant said the Appellant who is her step father went to the room and advised her to seek ways of persuading her mother to send them money. 9. The complainant said he started touching her breasts. She stopped him and went to the sitting room. 10. The complainant said the Appellant followed her to the sitting room. She threatened with a wire that was on the table. The Appellant took a knife and threatened her with it. He forcefully led her to the bedroom where he undressed her, exposed his penis, put on a condom before defiling her. 11. The complainant phoned her mother who was far away. The mother called the complainant’s grandmother (PW3) and told her to find out what had happened. 12. The complainant’s grandmother reported the incident to the complainant’s school and to the local community including the Chief Eunice Majalla who testified as PW4. 13. The complainant was examined at Moi County Referral Hospital by Doctor Joto Nyawa (PW2). 14. PW2 said the complainant’s hymen was not freshly broken but there was evidence that she was sexually penetrated. 15. The Appellant in his defence said that on 13th March 2023, his Aunt informed him that there was distressing information against him and told him to ensure something was done to ensure that he vanishes from her life. 16. The following day, he requested for off-duty to enable him to deal with the claims against him. On 15th March 2023, he accompanied the complainant with his mother and the village elder to the police station. 17. The Appellant said he was not interrogated but he was locked up in the cells and later arraigned before court. 18. The trial court found the Appellant guilty as charged and sentenced him to fifteen (15) years imprisonment. 19. The Appellant has appealed against the conviction and sentence on the following grounds:- 20. i. That the learned trial Magistrate erred in law and fact by failing to appreciate that the critical elements of defilement were not proved as required in law occasioning a prejudice. ii. That the learned trial Magistrate erred in law and fact by again failing to appreciate that the medical evidence and other adduced did not corroborate the charges as drawn. iii. That the learned trial Magistrate further erred in both law and fact in failing to appreciate that there was a grudge with the victim’s family occasioning a prejudice. iv. That further the learned trial Magistrate erred in both law and fact in failing to appreciate that the prosecution did not prove its case as against the Appellant as required in law occasioning a miscarriage of justice. v. That I wish to be present during the hearing and determination of this appeal and pray to be supplied with the record of trial proceedings and the judgment to enable me prepare for the hearing of the appeal. The parties filed written submissions as follows; The appellant, Felix Mnubi Ponga, having been convicted of defilement and sentenced to fifteen years' imprisonment, appeals the decision on several consolidated grounds. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/573/eng@2026-01-29 2

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21. He contends that the trial magistrate erred by failing to consider the peculiar circumstances of the case, wherein the complainant's mother, with whom he was engaged in a marital and property dispute, was the source of the allegations. 22. Her absence as a witness, despite being essential, creates a reasonable inference of fabrication and violates procedural fairness, rendering the prosecution's case deficient. 23. The appellant further argues that the circumstances of his arrest, where he voluntarily accompanied the complainant to report the matter, belie a guilty conscience and suggest innocence. 24. Regarding the evidence, the appellant submits that the medical evidence was contradictory and unreliable. 25. Specifically, the testimony of the doctor and the clinical officer confiicted on whether the complainant was menstruating during the examination and on the nature of the hymenal injury. 26. These contradictions, he argues, create fatal gaps in the proof of penetration, a core element of the offence, and the evidence should therefore be disregarded. 27. On the conviction itself, the appellant asserts that the learned magistrate erred in holding that the prosecution proved its case beyond a reasonable doubt. 28. He emphasizes the lack of immediate reporting, the potential for motivated falsehood given the familial discord, and the inconsistent medical testimony as collectively failing to meet the requisite standard of proof. 29. Finally, the appellant challenges the constitutionality of the mandatory minimum sentence imposed under the Sexual Offences Act. 30. He argues that such mandatory provisions improperly strip the judiciary of its sentencing discretion, treating all cases in a factual vacuum without regard to individual circumstances or prospects for rehabilitation. 31. This, he submits, violates constitutional rights to a fair trial and human dignity. 32. He urges the court to follow the principles established in the Francis Muruatetu case and subsequent jurisprudence, which have extended the condemnation of mandatory sentences beyond murder. 33. In the alternative, should the conviction stand, he prays for a sentence reduction considering his mitigation as a remorseful first offender. 34. Wherefore, the appellant prays that this Court allows the appeal, quashes the conviction, and sets aside the sentence. 35. In the alternative, he prays for a substantial reduction of the sentence imposed. 36. The Respondent submitted that he opposes the Appellant's appeal in its entirety. 37. The case originated from the Appellant's conviction and 15-year sentence for defilement, with an alternative charge of committing an indecent act with a child. 38. The prosecution successfully proved all requisite elements of defilement beyond a reasonable doubt. 39. First, the age of the complainant was conclusively established as 17 years through the production of her birth certificate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/573/eng@2026-01-29 3

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40. Second, penetration was proved both by the complainant's direct testimony describing the act and by corroborative medical evidence, which indicated a broken hymen and signs consistent with penetration. 41. Third, the positive identification of the assailant was unequivocal, as the Appellant is the complainant's father and she identified him as the sole perpetrator present during the incident. 42. The Appellant's defense amounted to nothing more than a bare denial, which does not displace the compelling evidence presented by the prosecution. 43. Consequently, the conviction is sound and the Respondent prays for the appeal to be dismissed. 44. The issues arising for determination in this matter are as follows; i. Whether the prosecution proved all the essential elements of the charge of defilement beyond reasonable doubt; ii. Whether the Appellant’s defence was properly considered; iii. Whether the sentence imposed was lawful and appropriate. 45. This Court has carefully re-evaluated the evidence adduced before the trial court, bearing in mind its duty as a first appellate court to subject the entire record to a fresh analysis and draw its own conclusions while giving allowance for the fact that it did not see or hear the witnesses testify. (See Okeno vs. Republic [1972] EA 32). 46. The charge against the Appellant was one of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. 47. The ingredients that the prosecution was obligated to prove beyond reasonable doubt are: the age of the complainant, proof of penetration, and the positive identification of the Appellant as the perpetrator. 48. On the age of the complainant, the prosecution produced a birth certificate which was admitted in evidence. 49. This document conclusively proved that the complainant, J.W.N, was 17 years old at the time of the incident. 50. This element was therefore proved to the required standard. 51. Regarding penetration, the complainant (PW1) gave a clear and graphic account of how the Appellant, after threatening her with a knife, undressed her, wore a condom, and proceeded to have sexual intercourse with her. 52. This direct evidence of penetration was corroborated by the medical evidence of the Clinical Officer, PW2. 53. While the Appellant correctly points out that PW2 noted the hymen was not freshly broken, the evidence was unequivocal that it was broken and that there was evidence of penetration. 54. The medical finding of a broken hymen, which was an old tear, is consistent with sexual activity and does not in any way negate the complainant’s testimony; it corroborates it. 55. The minor contradictions regarding whether the complainant was menstruating are inconsequential to the core fact of penetration, which was established by the credible testimony of the victim. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/573/eng@2026-01-29 4

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56. The evidence of a victim of sexual assault is like the evidence of any other single witness and a conviction can be based on it if it is credible, so long as the court warns itself of the danger of relying on such uncorroborated evidence. 57. In this case, the complainant’s evidence was not only credible but was also corroborated by the prompt report made to her grandmother (PW3) and the Chief (PW4), and by the medical evidence. 58. On the issue of identification, the Appellant was positively known to the complainant as her stepfather. 59. This was a case of recognition in broad daylight, and there is no possibility of mistaken identity. 60. The allegation of a grudge or a scheme orchestrated by the complainant’s mother does not hold. 61. The defence raised this as a motive for a false allegation but offered no tangible evidence to support the claim of a conspiracy. 62. The complainant’s mother did not testify, but her absence is not fatal to the prosecution's case. 63. The case was built on the testimony of the victim, which was found to be truthful, and on the corroborative evidence of other witnesses. 64. The claim of a grudge remains a bare allegation. The Appellant’s conduct of voluntarily accompanying the complainant to the police station, as highlighted in his defence, does not prove innocence. 65. It is conduct that is equally consistent with a guilty party attempting to control the narrative or appear cooperative. 66. The trial magistrate considered the defence and rightly found it to be a mere denial that did not displace the strong evidence adduced by the prosecution. 67. In sum, the trial court correctly found that all elements of the offence were proved beyond reasonable doubt. 68. The evidence of a single witness, if credible, is sufficient to sustain a conviction in a sexual offence case. 69. The grounds challenging the conviction therefore fail. 70. Concerning the sentence, the Appellant was sentenced to fifteen years’ imprisonment, which is the mandatory minimum sentence prescribed under Section 8(4) of the Sexual Offences Act for defilement of a child aged between 16 and 18 years. 71. The Appellant has challenged the constitutionality of this mandatory sentence. 72. The jurisprudence of the Supreme Court and the Court of Appeal in Kenya has evolved significantly on this issue. 73. In the landmark case of Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, the Supreme Court declared the mandatory death sentence for murder unconstitutional as it fettered judicial discretion. 74. However, the said case is only applicable to murder cases and not any other cases as clarified in Muruatetu2. 75. Accordingly, the final decision of this Court is that the appeal against conviction and sentence are hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/573/eng@2026-01-29 5

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76. The findings of the trial court are upheld. DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JANUARY 2026 VIRTUALLY VIA MT TEAMS AT VOI HIGH COURT. ASENATH ONGERI JUDGE In the presence of:Court Assistant: Millicent/Mabishi State Counsel:………………………………………….. Appellant: ……………………………………………… https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/573/eng@2026-01-29 6

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