Stanley Kimani Mwangi v Rebuplic

3. Parties disposed of the appeal by written submissions. The Appellant’s Submissions 4. The appellant refers to the case of Fappyton Mutuku Ngui vs Republic Cr. Appeal 296 of 2010 and submits that the prosecution did not prove the ingredients of defilement beyond reasonable doubt. The appellant submits that the complainant testified that she reported the incident to her cucu (meaning grandmother). She further testified that on the material day she was left with her guka (meaning grandfather) when her cucu went to visit her mother yet the record shows that the minor was at school. The appellant further submits that the complainant framed him which is further supported by the testimony of the teacher that she did not see any problems with the minor. The appellant additionally submits that the allegation of defamation was brought as a result of the complainant’s fear of staying with him. 5. The appellant relies on the cases of Mutie Musauli vs Republic (2019) eKLR and Daniel Kiplimo Cherono vs Republic [2014] eKLR and submits that the prosecution did not establish every element of the offence and further the prosecution witnesses were coached. The appellant further submits that the credibility of the witnesses was untenable and therefore the conviction was not safe. 6. The appellant argues that the evidence of the minor was not credible pursuant to Section 124 of the Evidence Act and needed corroboration. The appellant further argues that the complainant being a child, her evidence solely should not have been relied on as the minor could not tell whether or not she was treated. Furthermore, the appellant submits that the minor could not recall the day of the incident. Additionally, the appellant argues that the minor was not credible in her testimony in that her evidence was contradicted by that of her grandmother who testified that the child was given to her because she was indisciplined. Further, although the minor testified that she reported the incident to the grandmother, the grandmother denied having received such a report from the minor. 7. The appellant submits that the doctor said there was penetration but only testified that the minor’s hymen was broken which is not conclusive proof of penetration. Furthermore, although the doctor testified that the minor had infections, she did not link the infections to him. 8. The appellant submits that the trial magistrate failed to give consideration to his defence which was plausible. 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 called three witnesses whose evidence was never challenged. Further, DW1, DW2 and DW3 said they knew that PW1 was a child of questionable character. 9. The appellant refers to the cases of Fatuma Hassan Salo vs Republic (2006) eKLR; Edwin Wachira vs Republic Petition No. 97 of 2021 and Robert Kiplangat Too vs Republic [2020] eKLR and submits that mandatory minimum sentences do not take into account the overall objectives of punishment which is not only ensuring deterrence but also affording the reform and rehabilitation of the offender and they do not give judicial officers the discretion in sentencing. The Respondent’s Submissions 10. The respondent submits that the prosecution proved its case beyond reasonable doubt. The respondent refers to Section 8(1) and 8(3) of the Sexual Offences Act and the case of Kyalo Kioko vs Republic (2016) eKLR and submits that it proved the ingredients of the offence of defilement. The respondent relies on the case of Mwalango Chichoro Mwanjembe vs Republic (2016) eKLR and submits that PW1 was 11 years and 3 months at the time of the offence. The certificate of birth of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1139/eng@2026-01-29 2

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the victim serial number 000343983 was produced as evidence and it proved that the victim’s age was within the bracket of Section 8(3) of the Sexual Offences Act. The respondent submits that the appellant has not brought any new material facts to dispute the fact of age. 11. The respondent relies on Section 2 of the Sexual Offences Act and the case of Mark Oiruri Mose vs Republic (2013) eKLR and submits that PW1 testified that the appellant defiled her in his home and that the appellant caressed her breasts and inserted his penis into her vagina. PW1’s testimony was corroborated by PW2, PW3 and PW4. PW5, the doctor who examined the complainant confirmed her hymen was broken and PW1 had an infection. The broken hymen confirmed that there was penetration corroborating evidence of the complainant. The respondent submits that the evidence produced during trial clearly proved the element of penetration to the required standards. P3 and PRC Forms were produced as exhibits which corroborated the evidence of the victim and was not impeached by the appellant during cross examination. 12. The respondent submits that proof of participation of an accused person is crucial as it enables one to determine who to attach criminal responsibility. The respondent submits that PW1 testified that she lived with the appellant as her guardian in the same house, a fact that was not disputed by the appellant. PW1 knew the appellant well and that the identification was by recognition. The respondent submits that from the evidence that was adduced at trial, it is clear that the appellant is the person who defiled the victim and there was no possibility of mistaken identity. 13. The respondent submits that all the prosecution witnesses were consistent and corroborated each other. The court found the witnesses to be truthful and credible to the extent that their testimonies were not shaken during cross examination. The respondent further submits that the trial court considered the evidence of the appellant but found that it did not outweigh the overwhelming evidence by the prosecution. Issues for determination 14. The appellant has cited 5 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 15. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs 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 considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1139/eng@2026-01-29 3

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16. Similarly in the case of Okeno vs 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 vs 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 vs 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 vs Sunday Post [1958]EA 424.” This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174. 17. In order to establish whether the prosecution proved its case beyond reasonable doubt I shall address the following issues as raised by the appellant: a. Whether the prosecution proved their case to the standards required in criminal cases. b. Whether the trial court considered the defence of the appellant. Whether the prosecution proved its case beyond any reasonable doubt 18. Relying on the case of Charles Wamukoya Karani vs 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.” 19. On the age of the victim, the court of Appeal in Edwin Nyambogo Onsongo vs 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. 20. PW1 testified that she was 12 years old born on 15th October 2011. PW4, the investigating officer testified that the minor was 11 years old and was born on 2nd October 2011. The investigating officer produced the minor’s birth certificate as an exhibit. I have perused the birth certificate serial number 000343983 which indicated that the minor was born on 2nd October 2011. 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. 21. 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.” 22. On the element of penetration, PW1 testified that she used to live with her uncle when he gave her out to stay with the appellant and his wife whom she used to call her guka and cucu. The minor further https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1139/eng@2026-01-29 4

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testified that on the material day in the year 2022 her cucu went to visit her mother when the appellant told the minor that he wanted her to sire a child for him. The minor refused and told him that she was not of age. The minor stated that the appellant followed her to her bedroom and started caressing her and touching her breasts. The appellant removed her clothes and his clothes and then inserted his penis into her vagina. The witness testified that she told the appellant that she was feeling pain and he stopped and told her not to tell her cucu. The minor stated that she saw blood coming out of her private parts. Further, the witness testified that the appellant defiled her again at night and when her cucu went back home, she reported the appellant to her. Her cucu told the appellant not to repeat the incident again. The minor testified that the appellant defiled her again during the day at lunch time when her cucu went for a women’s meeting. She reported the incident to her cucu when she returned but she only cautioned him. The minor then was in pain and told the head teacher who informed the deputy headteacher and she was taken to the police station. 23. PW2, the headteacher of Ruburi Primary School testified that on 28th July 2022, PW1 went to his office and stated that she felt weak and her eyes were in pain. The minor further stated that she did not want to stay with the appellant as he had done bad manners to her. The witness stated that he called the deputy head teacher and continued to interrogate the minor in her presence and the minor told them that the appellant had defiled her five times and had reported him to her grandmother twice. 24. PW3, the deputy head teacher of Ruburi Primary School testified that on 28th July 2022 the head teacher called her to his office and he was with the minor. He told the minor to repeat what she had told him and the minor stated that she wished she would leave the appellant’s house because he used to go to her bedroom and do bad things to her. The minor further stated that the appellant used to touch her breasts and insert his penis into her vagina. 25. Dr. Wangui Kamau, a doctor at Gatundu Level 5 Hospital, PW5 testified that the minor was examined on 28th July 2022 and filled the Post Care Rape Form and P3 Form. The doctor testified that upon examination of the minor, she found that the minor had many epithelial and pus cells which was proof of an infection. She further noted that the minor had not changed her pant since the last act which was on 20th July 2022. The doctor additionally noted that the minor’s hymen was broken and that she had an abnormal gait and that she was traumatized. The doctor classified the minor’s injuries as grievous harm and concluded that the minor was defiled. PW5 produced the Post Rape Care Form, Pre Assessment Form GL5 Hospital, the P3 Form and treatment notes as exhibits. 26. To prove penetration, the key evidence relied on by courts in a defilement matter is the complainant’s testimony which is usually corroborated by medical evidence. PW5 the doctor testified that the examination done on PW1 revealed that her hymen was broken and she had an infection which indicated penetration of the penile. Further, the minor had a changed walking gait. Thus the inevitable conclusion from the analysis of the evidence is that there is ample evidence to prove that penetration occurred. 27. On the issue of identification, PW1 testified that she lived with the appellant and his wife who PW1 referred to as “guka” and “cucu” after her uncle, Edwin gave her out to live with them. The appellant testified that the minor’s parents are deceased and she used to live with him and his wife. The appellant further testified that the minor lived with them for three months. DW2, the wife of the appellant confirmed that the minor liver with her and the appellant after the uncle of the minor gave her away to them. The witness further testified that the minor started leaving with them from March 2022. 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 but only stated that he did not defile her as alleged and that she framed the charges against him. PW1 identified the appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1139/eng@2026-01-29 5

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as the perpetrator. It is thus my considered view that the appellant was positively identified by the complainant. As such, I accordingly find that the prosecution satisfied 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 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 understood the nature of oath. The trial magistrate found the minor possessed of sufficient intelligence as to give sworn evidence. The learned magistrate further observed that the minor was consistent, clear 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. It is therefore my considered view that the complainant’s evidence was cogent, consistent and well corroborated as required by the law. 29. The appellant argues that the prosecution witnesses including PW1 were not credible and were full of malice. On perusal of the record, PW1 gave a consistent and cogent account of how the appellant defiled her numerously even after she was recalled for purposes of cross examination. The fact that she could not recall the exact dates the appellant defiled her does not mean she was not a credible witness. It is also important to consider that the complainant was a minor of tender age. However, the minor gave credible evidence which was corroborated by medical evidence and fortified by that of PW2 and PW3. The appellant did not convince the court that any of the witnesses had reason to be malicious to the extent of framing him. PW2 testified that he had no grudges prior, against the appellant while PW4 and PW5 said they did not know the appellant before the incident. 30. The appellant further submits that the trial court did not consider his defence. On perusal of the trial record, the appellant testified that he did not defile the minor but it was all a fabrication. The appellant testified that the minor was not of good character and she would go home late change her clothes and go away. The witness further testified that the minor was once chased from school in July 2022 as she had abused a teacher. Further, the minor would steal money from him and she was unhappy living with them. The appellant testified that the minor used to complain of the food, she did not clean her clothes or do any work and she was not comfortable with living with him and his wife. The appellant further testified that on 20th July 2022, he was working in his shamba with his wife and the minor was in school but she went home at 5pm and therefore he could not have defiled her as they were at home with his wife. DW2, the appellant’s wife testified that the minor went to live with her and the appellant on account of being indisciplined as explained by her uncle. The witness testified that the minor would go home late, she would change from her school uniform and leave the house. She further testified that the minor was not comfortable staying with them and she had told her that she wanted to go back to Nairobi. DW2 further testified that on the material day, she was home with the appellant and they were working in the shamba and they went back home at 2pm while the minor went home from school at 5pm. The witness testified that the minor never reported the incidents to her. DW3 also testified that the minor was indisciplined and he used to see her with various men. 31. I have noted that the issue of the minor’s character was raised by the appellant during his defence. During cross-examination, the appellant did not raise the said issue despite the prosecution calling the head teacher and deputy head teacher of the minor. The said witnesses were best placed to have been https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1139/eng@2026-01-29 6

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cross examined by the appellant as to the behaviour of the minor especially since the appellant pointed out that on one occasion the minor was chased from school for abusing a teacher. DW2, who talked of indiscipline of the minor admitted that she did not report any case of indiscipline to the head teacher. It is therefore my considered view that the trial court considered the appellant’s defence and concluded that it was not substantiated and was an afterthought. The appellant had been squarely placed at the scene and there was no issue of mistaken identity. 32. I have perused the judgment of the court below and noted that the trial court considered the defence of the appellant including the allegation that the minor was indisciplined and found no substance in the whole narrative. In my view the defence was fully considered and found not to be plausible. 33. The evidence of the prosecution in this case was overwhelming thus establishing all the ingredients of the offence of defilement under Sections 8(1) of the Act. As such, it is my finding that the prosecution proved the case against the appellant beyond any reasonable doubt. The conviction was therefore based on cogent evidence. Whether the sentence was harsh and excessive 34. The Court of Appeal, on its part in Bernard Kimani Gacheru vs 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.” 35. 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. 36. The Supreme Court decision in Republic vs 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/2026/1139/eng@2026-01-29 7

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37. The Supreme Court in the above case established the position on the issue of minimum sentences which binds this court. 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 view that the sentence of twenty (20) years imprisonment is lawful and reasonable and ought not to be interfered with. 38. Consequently, the conviction and sentence are hereby upheld. 39. I find no merit in this appeal and dismiss it accordingly. 40. 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/2026/1139/eng@2026-01-29 8

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