John Waweru Nduati Alias Don v Republic

The Appellant’s Submissions 4. The appellant submits that the complainant was not a credible witness as her testimony was filled with inconsistencies and therefore her evidence required corroboration. The appellant argues that the complainant testified that he tied her legs and but then she alleged that he opened up her legs and lifted them. Further, the complainant did not provide details as to how he removed her underpants yet she was tied up. The appellant submits that although the complainant testified that a leso was used to gag her, the said item was never produced as evidence and neither was the rope which was claimed to have been taken by him. The appellant argues that the minor further testified that he took a bath which is not possible after committing a heinous crime. The appellant further argues that the evidence by the complainant on the defilement suggests that she was coached. 5. The appellant refers to the decisions in Ndungu Kimani v Republic [1979] KLR 282 and John Mutua Munyoki v Republic (no citation is given) and submits that the complainant was not a credible witness and her testimony was untruthful. 6. The appellant argues that the minor’s testimony on penetration was vague and lacked the specificity required to discharge the burden of beyond reasonable doubt. The appellant further argues that the complainant used the term private part which could mean other things than the vagina and further the minor did not testify as to what penetrated her and where exactly she was penetrated. The appellant submits that although spermatozoa was found upon examining the minor, the doctor did not prove a conclusive link to him and the alleged act. Further, the appellant submits that he was never subjected to any medical examination thus failing to provide a direct link to him. The appellant thus submits that the prosecution failed to prove penetration and relies on the cases of Mutie Musauli v Republic (2019) eKLR; Michael Kihara Kariuki v Republic (2017) eKLR and Daniel Kiplimo Cherono v Republic [2014] eKLR to support his contentions. The appellant further argues that the medical reports produced were inconclusive and failed to establish any link between the alleged defilement and him. 7. The appellant relies on Article 50(2)(k) of the Constitution, Section 146(4) of the Evidence Act and the case of Miriti v Republic [2024] KEHC 3381 (KLR) and submits that the trial court erred by failing to allow him to recall the complainant. Further the appellant refers to section 77 of the Evidence Act and submits that the clinical officer who produced the medical reports was not the author and the prosecution failed to demonstrate that the original author was unavailable undermining his right to cross examine the actual expert. 8. The appellant argues that the conviction was not justifiable and he ought to have been given the benefit of doubt. The appellant submits that he gave an account of how he was arrested as he stated that he was not the owner of the house, a fact that was not rebutted. The appellant submits that the prosecution coached their witnesses to ensure that they secured a conviction but failed to note that his defence was credible. To support his contentions, the appellant relies on the cases of Adedeji v The State [1971] 1All NLR 75; Ricky Ganda v The State [2012] ZAFSHC 59 and Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR. The Respondent’s Submissions. 9. The respondent submits that the prosecution proved its case beyond reasonable doubt. The respondent refers to Section 8(1), 8(3) of the Sexual Offences Act and Section 124 of the Evidence Act and submits that the victim’s evidence was corroborated by the medical reports and the appellant has not brought forth any evidence to the contrary. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 2

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10. The respondent submits that scientific evidence can only be controverted by using counter scientific evidence and not mere words. The clinical officer who examined the complainant testified that there were signs of penetration. The P3 Form and treatment notes were produced and admitted in evidence thus the medical findings corroborated the complainant’s testimony. The complainant was attended to at the first instance at Romkan Medical Centre and upon conducting a Hv test, numerous live spermatozoa were seen as evident from the medical report and laboratory tests that were produced in evidence. 11. The respondent submits that the complainant made a prompt report to her guardian which was followed by medical examination and report to the police station. Her testimony was detailed, consistent, steadfast and unwavering through cross examination thus the trial court found it credible and recorded reasons for believing her in line with Section 124 of the Evidence Act. The trial court further noted that there was no reason why the complainant would want to frame the accused and as a matter of fact the issue of mistaken identity could not arise in the circumstances as there wasn’t any other man in the house where the accused was connecting the DVD/TV. The respondent further relies on the case of Mark Oirere v Republic [2019] eKLR and submits that the trial court assessed the credibility of the minor holistically and considered her demeanour, consistency and corroboration and found the minor truthful. 12. The respondent submits that the trial court considered the appellant’s defence and found it unconvincing. The defence was a mere denial unsupported by evidence and the trial court gave cogent reasons for rejecting it. The appellant had alleged that the complainant’s mother had engaged him to have sex with him and she would pay him Kshs. 2,500/- but the complainant’s mother refused to give him the money. The trial court found that to be far fetched and unbelievable. Further, the trial court found no nexus between the alleged agreement in his defence and the charges presented against him. The respondent argues that the instant appeal is simply an attempt by the appellant to cast wide nets and clutch on straws as nothing concrete has been brought forth in a bid to disprove the findings of the trial court or to affirm that his defence was either ignored or not considered. Relying on the case of Republic v David Gichuru Njuguna [2023] eKLR, the respondent argues that the appellant has not demonstrated any exceptional circumstances to warrant interference with the sentence. Issues for determination 13. The appellant has cited 6 grounds of appeal which can be compressed into two main issues:a. Whether the prosecution proved its case beyond any reasonable doubt; b. Whether the sentence meted out against the appellant is justified. The Law 14. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu v Republic [2010] eKLR where the Court of Appeal stated:“ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 3

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considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions." 15. Similarly in the case of Okeno v Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court 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 (Pandya v Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions. 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 the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958]EA 424.” This was also set out in the case of Kiilu & Another v Republic [2005] KLR 174." Whether the prosecution proved its case beyond any reasonable doubt 16. In order to establish whether the prosecution proved its case beyond a reasonable doubt I shall address the following issues as raised by the appellant: a. Whether there was conclusive evidence of all the ingredients of defilement; b. Whether the prosecution case was filled with contradictions and inconsistencies; c. Whether the trial court considered the defence evidence. Whether there was conclusive evidence of all the ingredients of defflement. 17. Relying on the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where it was stated that:- “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 18. On the age of the victim, the court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR, the court stated as follows in respect of proving the age of the victim in cases of defilement: “ ….the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable." 19. PW1 testified that she was 11 years old and PW2, the complainant’s mother testified that PW1 was born on 1st March 2009. PW6, the investigating officer testified that the minor was born on 1st March 2009 and was 11 years old. The investigating officer produced the minor’s birth certificate as an exhibit. I have perused the birth certificate which indicated that the minor was born on 1st March 2009. Therefore the minor was approximately eleven years and three months when the offence occurred. It is therefore my considered view that the prosecution proved the age of the minor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 4

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20. Section 2(1) of the Sexual Offences Act defines penetration as: “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 21. On the element of penetration, PW1 testified that on 13th June 2020 she was home alone when she called the appellant to connect the DVD machine for her. The minor testified that the appellant connected the DVD for her and waited for a woman fetching water at the bore well near their house to leave and as she tried to leave their house, the appellant pulled her back and picked up a rope. The appellant tied her legs and hands with the rope and then he tied her mouth with a leso that he picked from the bedroom. The minor further testified that the appellant put her on a seat, undressed her and inserted his fingers in her vagina. The appellant then took her to the bedroom and inserted his fingers in her vagina as she was standing. PW1 further testified that the appellant lay her on the bed, removed his trousers and inserted his private part inside her vagina. The minor stated that the appellant lifted her leg when he inserted his private part into hers. The appellant then opened her leg when he was inserting his private part into hers. The witness further testified that the appellant picked her and took her to the sitting room and then picked a kitchen knife and told her that if she told anyone, he would pierce her with the knife. The appellant then told her that he was going to the mpesa shop to withdraw Kshs. 20/- for her. The minor stated that the appellant untied her leg, hands and mouth and left with the rope. He went to the borehole, fetched water, went to the bathroom and took a bath. The minor stated that when she saw the appellant enter the bathroom, she ran out of the 22. house and found her neighbour Mama Mary and told her what had transpired. 23. Georgina Kanana Romano, a clinical officer at Romkam Medical Centre, PW5 testified that the minor was examined on 13th June 2020 by her colleague Josphat Njenga. She stated that upon examination of the minor, they found lacerations on her vulva. They further conducted a Hv on the child which revealed numerous live spermatozoa and red blood cells. The witness testified that the presence of live spermatozoa in the Hv swab indicated that there was sexual intercourse and ejaculation. The clinical officer stated that they referred the minor to Thika Level 5 Hospital to get PEP which they did not have. PW5 produced the medical report and referral letter as exhibits. 24. Beatrice Muthoni, a clinical officer at Thika Level 5 Hospital, testified that her colleagues Dr. Maimu filled the P3 Form but he was away for further studies and Dr. Waithaka filled the PRC Form but he was on transfer. PW7, Nancy Ndigwa a clinic officer at Thika Level 5 Hospital testified that the minor was examined at Thika Level 5 Hospital and Dr. Mariwa filled the P3 Form. The witness testified that upon examination of the minor, they found that her vagina and labia minora were swollen, virginity broken and red blood cells were seen. The clinical officer testified that virginity been broken was caused by penetration. PW7 produced the P3 Form and treatment notes as exhibits. 25. The appellant argues that the medical evidence did not link him as the perpetrator of the offence and therefore the prosecution did not prove this element to the required degree. As the Court of Appeal noted in Geoffrey Kioji v Republic Nyeri Criminal Appeal No. 270 of 2010 (UR):“ Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to Section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 5

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an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief." 26. To prove penetration, the key evidence in a defilement case is the complainant’s testimony which is usually corroborated by the medical evidence. The evidence of PW1 herein was corroborated by the medical evidence of PW5 and PW7. PW5 pointed out that the examination done on PW1 revealed that she had lacerations on her vulva and numerous live spermatozoa and red blood cells were present upon doing the high vaginal swab test. PW5 concluded that the presence of live spermatozoa in the Hv swab indicated that there was sexual intercourse and ejaculation. Thus the inevitable conclusion from the analysis of the evidence is that there exists ample evidence to prove that penetration occurred. 27. On the issue of identification, PW1 testified that the appellant was a caretaker in their plot and he lived in their plot. The minor further testified that the appellant would regularly come to cut grass, paint houses and carry out repairs in the said plot. PW2, the complainant’s mother testified that the appellant was a caretaker at the plot and he lived there for two years. PW3, a neighbour of the complainant, testified that the appellant was the plot’s caretaker and on the material day he was fetching water in the borehole when he saw the appellant enter PW2’s house at around 6pm. PW4, a neighbour of the complainant testified that the appellant was the caretaker of the plot. Thus the appellant was well known to the complainant. This was a case of recognition and not simple identification. The appellant did not deny knowing the complainant. He said in his defence that he was the caretaker of the plot since the year 2018. That on the material day he went to PW1’s house as PW2 had said that he fixes her TV. The appellant placed himself at the scene of crime and agreed with PW1’s evidence regarding his presence at the scene. The complainant knew the appellant well. She identified him through recognition. As such, I accordingly find that the prosecution did prove the element of identification. 28. The appellant has complained that the minor’s evidence ought to have been corroborated. It is trite law that in sexual offences cases, pursuant to Section 124 of the Evidence Act, corroboration of evidence by the victim is not a mandatory requirement as long as the court believes that the victim is telling the truth and records the reasons for believing the victim. On perusal of the record, the trial magistrate conducted a voir dire examination on the complainant and the trial magistrate noted that the minor was intelligent enough to answer the questions put to her and she understood the nature of the oath and duty to tell the truth. Thus, the trial magistrate clearly directed that the minor gives sworn evidence. The learned magistrate further observed that the minor was consistent and truthful as she narrated her account of what transpired on the material day. I have perused the trial court’s proceedings and noted that PW1’s evidence was precise and consistent and unshaken on cross examination. It is trite law that PW1’s evidence does not require corroboration by any other evidence save for medical evidence as provided for under Section 124 of the Evidence Act. The medical evidence of PW5 was to the effect that there was forceful penetration. It is my considered view, this corroboration by PW5 was sufficient in this case. It is my considered view that the complainant’s evidence was cogent, consistent and well corroborated by the medical evidence. 29. The appellant further argues that the prosecution’s case was filled with material inconsistencies and contradictions thus causing doubt on the alleged offence. Relying on the case in the Court of Appeal Tanzania of Dickson Elia Nsamba Shapwata & Another v The Republic Cr App. No. 92 of 2007, addressed the issue of discrepancies in evidence and concluded as follows:“ In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 6

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30. The appellant argues that the testimony of PW1 is contradictory as her account of the incident is not plausible and further it was vague as to what penetrated her. This court has already made a determination that the minor gave a very detailed explanation of how the appellant pulled her back when she tried to get out of her house, tied her hands and legs with a rope that was outside the house, tied a leso over her mouth and inserted his fingers into her vagina and thereafter his penis into her vagina. The minor while testifying showed the court that her private part was her vagina as she pointed to her vaginal area and told the court in detail that the appellant used his penis to penetrate her. Furthermore her evidence was supported by the medical evidence which revealed the presence of live spermatozoa on the minor’s vagina. Further on cross examination, the minor’s testimony was not shaken and she remained consistent. It is my considered view that the minor’s testimony was consistent and cogent and there were no material inconsistencies or contradictions that went to the root of the matter. 31. The appellant further argues that his right to a fair trial was infringed as the trial magistrate refused him to recall witnesses. I have perused the record and noted that the appellant’s counsel made an application during the trial to recall PW1 and PW2 for further cross examination. The trial court heard the application and found that the victim being 11 years old would be greatly traumatized by being recalled to testify again and that it would not be in her best interest as a child of tender years. The trial court further noted that the appellant was in possession of witness statements at the time the trial commenced and further that the appellant was comfortable with proceeding without legal representation from his advocates. The trial court then declined to have the minor recalled but allowed the application in regard to PW2. During the taking of the plea, the appellant pleaded not guilty to the charges and was ready to proceed when the matter came up for hearing. The trial court made an order after plea taking for the appellant to be supplied with witness statements. The appellant said that he was ready to proceed with the hearing of his case which demonstrated that he was comfortable to proceed without legal representation. I am of the view that the magistrate had the best interest of the minor in mind when he rejected the application to recall her for further cross-examination. The appellant has not demonstrated any prejudice occasioned to him by the decision of not recalling the minor. 32. The appellant has further argued that the medical officers who testified were not the authors of the documents and that the court undermined the credibility of the evidence by allowing them to testify. PW5 testified that her colleague, one Josphat Njenga was the one who examined the minor and wrote the medical report and referral letter. The witness testified that she had worked with the said Josphat Njenga for one year and he had since left the facility but she was familiar with his handwriting and signature. The prosecutor made an application to have the medical report produced by PW5 as Josphat Njenga had left the facility and could not be traced for bonding and that is why the investigating officer summoned the said witness to produce the medical report on his behalf. 33. 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 casesa. Relating to the cause of death. b. Made in the course of business https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 7

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34. 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 to a criminal prosecution or to a suit for damages; d. An opinion as to public right or custom e. Relating to existence of relationship f. Relating to transaction creating or asserting etc a custom g. Made by several persons and expressing feelings. Section 77 of the Evidence Act provides:1. In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistic expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence. 2. The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it. 3. When any report is so used the court may if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist as the case may be and examine him as to the subject matter thereof. 35. The record shows that PW5, the clinical officer testified that she had worked with one Josphat Njenga, the clinical officer who examined the minor on 13th June 2020, for one year and that Njenga had since left the facility. It was further stated that PW5 was familiar with the handwriting of Njenga as well as his signature. The respondent gave reasons for having the witness testify on behalf of Josphat Njenga to the effect that he could not be traced for bonding and the investigating officer had made several trips to the facility in a bid to trace him but to no avail. It was further stated that the whereabouts of the said Njenga were unknown. Based on that, the trial court allowed the witness to testify and produce the medical documents on behalf of the clinical officer. From the foregoing, it is my considered view that the prosecution laid the foundation to show that Josphat Njenga was not available to give the required evidence. On the production of the P3 Form and PRC Form drawn by Dr. Maimu and Dr. Waithaka, the appellant did not object to the said documents being produced by the clinical officer and PW7 from Thika Level 5 Hospital. The appellant only sought time to go through the documents and the trial magistrate stood down the witness and scheduled the matter for further hearing when PW7 produced the documents. The appellant having not objected to the production of the documents, cannot contest the tendering of the said documents in evidence on appeal. It is therefore my considered view that exhibit 2, 3, 4, 5 and 6 were procedurally produced by the respondent. 36. The appellant submits that the trial court did not consider his defence. On perusal of the trial record, the appellant denied committing the offence and testified that he opened water for a tenant and fixed PW2’s TV and as he was leaving PW1 stated that he defiled her. The appellant further testified that PW2 told him to have sex with her and she would give him Kshs. 2,500/- and he agreed to do so but PW2 refused to give him the money agreed. The appellant called one witness to support his case. DW2, mother of the appellant testified that on the material day, the appellant was called to fix a TV and he was arrested for defiling the minor. On cross examination the witness stated that she was not there https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 8

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when the incident took place and therefore she could not ascertain whether the appellant defiled the minor or not. 37. On perusal of the appellant’s submission, the appellant relied on caselaw to insinuate that his defence was that of an alibi. However, the said defence was not raised in the trial court. Even if the said defence was raised, it is trite law that an alibi defence ought to be raised at the earliest opportunity, which the appellant failed to do. That notwithstanding, the trial court considered the appellant’s defence and concluded that it was not substantiated. The appellant had been placed at the scene of crime by the witnesses. There was no issue of mistaken identity considering the facts of the case, in my view. On perusal of the record, the minor’s testimony was not shaken during cross examination and she gave a clear account of her ordeal linking the appellant to the commission of the offence. The trial court was inclined to believe the evidence of the prosecution witnesses as opposed to defence of the appellant, there was no evidence to the effect that the appellant was framed by PW2 or any other person with the said charges. PW1 gave a comprehensive testimony of the incident in a consistent manner. The defence of the appellant was a mere denial in view of the overwhelming evidence of the prosecution. 38. After careful analysis of the evidence, I am of the considered view that the prosecution proved its case against the appellant beyond any reasonable doubt. The conviction was therefore based on cogent evidence. Whether the sentence is harsh and excessive 39. The Court of Appeal, on its part in Bernard Kimani Gacheru v Republic [2002] eKLR restated that:“ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence, unless that sentence is manifestly excessive in the circumstances of the case or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 40. Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides 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. 41. The Supreme Court decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) held that:Mandatory sentences left the trial court with absolutely no discretion such that upon conviction, the singular sentence was already prescribed by law. Minimum sentences however set the floor rather than the ceiling with regards to sentences. What was prescribed was the least severe sentence a court could issue, leaving it open to the discretion of the courts to impose a harsher sentence. The judgment of the Court of Appeal delivered on October 7, 2022 was one for setting aside. In any case, the sentence imposed by the trial court against the respondent and affirmed by the first appellate court was lawful and remained lawful as long as Section 8 of the Sexual Offences Act remained valid. The Court of Appeal had no jurisdiction to interfere with that sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 9

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42. Taking into consideration the nature and circumstances of the offence, the mitigation given by the appellant and the ramifications of the appellant’s actions on the child’s future, it is my considered opinion that the sentence of twenty years imprisonment was reasonable and in accordance with Section 8(3) of the Act. 43. It is therefore my considered view that the conviction and sentence were based on cogent evidence and circumstances of the case and are hereby upheld. 44. I find no merit in this appeal and it is hereby dismissed. 45. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 29TH DAY OF JANUARY 2026. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1138/eng@2026-01-29 10

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