Erick Mugendi Nyaga v Republic

1. The learned trial magistrate erred in both law and fact by imposing a harsh and excessive sentence; 2. The learned trial magistrate erred in both law and fact by failing to consider that the ingredients of the offence were not adequately proved; 3. The learned trial magistrate erred in both law and fact by failing to consider that the appellant did not have legal representation; 4. The learned trial magistrate erred in both law and fact by failing to consider that the evidence adduced was contradictory. The Evidence in the trial court 4. At the hearing, PW1 was William Kariuki Gichoya a Clinical Officer at Ishiara Level 4 Hospital. He testified that the victim was brought to the Hospital on 19th October 2024 with a history of alleged defilement. She was experiencing pain in her private parts whilst walking and sitting. An examination was carried out and he observed that the hymen was broken even though there were no injuries around the genitals. Pregnancy, HIV and VDRL tests were negative and a high vaginal swab revealed high levels of blood and pus cells, signaling a freshly broken hymen. The victim was placed on an after-rape care regimen to prevent HIV and other infections. PW1 produced the P3 and PRC forms as evidence. In cross-examination, he stated that the victim was treated at around 2340hrs but the alleged incident occurred at 1700hrs. 5. PW2 was the victim who testified following voire dire examination. She stated that she was 13 years old at the time of the testimony. She said that on the day of the incident, she was on the way home with her 15-year-old sister when they parted ways as her sister went to water the goats. As PW1 was heading home, the appellant who is her cousin, caught her by the river, covered her mouth and then carried her to her aunt’s farm. It is there that he defiled her and then he ran away, leaving her feeling pain and bleeding. 6. She stated that she reported the incident to her aunt who called her parents and they reported the matter at the police station. She was taken to Ishiara Level IV Hospital for examination and treatment and was discharged. She stated that the incident was the first time the appellant had sexually assaulted her although he had chased her sometime before that. In cross-examination, she stated that the appellant was sitting on a stone along her path when he closed her mouth with his hands and carried her away. That after the incident, she told her aunt who directed her to where her mother was and she went and informed her of the incident. 7. PW3 was the victim’s mother. She produced her daughter’s birth certificate indicating that she was 11 years old at the time of the incident. She stated that on the fateful day, they were attending a party at her sister’s home when PW2 told her that the appellant had defiled her. She examined PW2’s clothes and found that she was bleeding from her vagina as her underwear was bloody. She escorted PW2 to the hospital through the police station. On cross-examination, she stated that PW2’s father called the appellant’s father after the incident but he refused to come. 8. PW4 was PC Lucy Mugambi of Ishiara Police Station. She stated that the incident was reported at the station on the same day that it occurred. She learned from the victim’s birth certificate that the victim was 12 years old at the time. She referred her to hospital for examination and treatment, and the P3 and PRC forms were availed by the hospital. She stated that the appellant was identified by PW2 as her cousin and assailant, and they arrested him and charged him with the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1264/eng@2026-02-11 2

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9. DW1, the appellant gave unsown evidence stating that on the day of the incident, he was working at his parents’ farm the whole day. At about 1700hrs he went to collect charcoal and returned at 1900hrs, after inspecting a certain property at Kianjue. That the following day, he left for work and did not return for another week. That when he returned, he was arrested and taken to Ishiara Police Station. He denied defiling PW2 who is his cousin, and he said that he was being accused falsely. Parties’ Submissions on the appeal 10. The appeal was canvassed by way of written submissions. 11. The appellant argued that the age of the minor as indicated on the charge sheet is false and this affects the sentence imposed upon him. That PW1, PW2 and PW3 all testified that she was 12 years old at the time of the incident. He submitted that there is a standing land dispute between his parents and PW2’s parents which is why he was falsely accused for the offence. He also argued that the P3 indicated that there were no physical injuries on the victim’s body and her hymen was absent, meaning that the report was false since more details of injury were stated during PW1’s testimony. He urged the court to review the sentence imposed on him because it is too harsh and he relied on the Court of Appeal’s decision in Manyeso v Republic [2023] KECA 827 (KLR). 12. The respondent relied on sections 2 and 8(1)&(2) of the Sexual Offences Act and argued that the evidence adduced proved the offence beyond reasonable doubt. It relied on the case of Shitula v Republic [2025] KECA 12 (KLR) and Rule 4 of the Sexual Offences Rules 2014 and argued that there are many ways to determine the age of a minor in a sexual offences case besides the birth certificate. That the birth certificate indicated that the victim was 11 years old at the time of the incident because she was born in January 2013 and the incident occurred on 19th October 2024. 13. It also relied on the cases of Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), Aloyo Ewoi v. Republic (2017) eKLR and Kenneth Kimani Kamunyu v Republic [2006] KEHC 3428 (KLR). Regarding the sentence, it relied on the Supreme Court’s decision in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) where the court stated that mandatory minimum sentences should be applied without being altered. Issues for Determination 14. The issues for determination are as follows: 1. Whether the offence was proved beyond reasonable doubt; and 2. Whether the sentence meted out to the appellant was harsh and excessive. Analysis and Determination 15. The first matter is to ascertain the evaluative role of this Court in an appeal such as this one. In the case of Kiilu & Another v Republic (2005)1 KLR 174, the Court of Appeal stated thus regarding the role of an appellate court: “ 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 weigh conflicting evidence and draw its own conclusions. 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 findings and conclusions; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1264/eng@2026-02-11 3

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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.” [Emphasis added] 16. 17. As to whether the offence was proved beyond reasonable doubt, section 8(1) and (2) of the Sexual Offences Act provide: “ (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” [Emphasis added] Therefore, the elements of the offence may be broken down as follows: 1. The age of the complainant- that the complainant was a child; 2. Penetration as defined under section 2(1) of the Sexual Offences Act happened to the child; 3. The perpetrator was positively identified. 18. PW2, the victim, stated that she was born on 1st January 2013 and was 13 years old at the time of testifying. PW3 produced the victim’s birth certificate as evidence. The offence was committed on 19th October, 2024. The period between the date of birth indicated on the birth certificate and the date of the offence is 11 years, 8 months and some days. The victim was still eleven (11) years not twelve. 19. In cases of defilement, the age of the victim may be proved through different means. Such was the position held in the case of Alex v Republic [2023] KEHC 19483 (KLR) where the court relied on the sentiments of the Court of Appeal in the case of Mwalango Chichoro Mwanjembe v Republic (2016) eKLR as follows;“ 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 documentary 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.” 20. Therefore, it is clear that at the time of the incident, the child was not yet 12 years old as argued by the appellant. This fact being firmly established through the birth certificate also confirms that the appellant was charged under the appropriate provision of law. 21. PW2 and PW3 testified that shortly after the incident occurred, PW2 was bleeding from her vagina, and PW3 even noted that her underwear was soaked in blood. PW1 testified that when PW2 was examined, there were no physical injuries on her body but the hymen was freshly broken, a sign of defilement. He produced a medical examination report which indicated in Section C that there were no physical injuries, hymen was absent, no discharge and no lacerations. In Section D, the doctor remarked that there was possible sign on penetration due to numerous pus cells. The appellant argued that the testimony of PW1 in court contained more details than those contained in the P3 form which he produced. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1264/eng@2026-02-11 4

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22. If there exists a contradiction in a criminal case, that contradiction is critical if it has the potential of creating reasonable doubt in the mind of the court and the accused person should be able to benefit from that doubt. In the case of Richard Munene v Republic [2018] KECA 186 (KLR), the court held: “ It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.” 23. It is noted that from the testimonies of PW2 and PW3, the victim was examined on the same day when the incident occurred but the P3 was authored 3 days after. This is not a new occurrence since on many occasions, a P3 is authored a few days after the incident. In this case, PW1, the examining professional is the same person who authored the medical examination report. In my view, his testimony in court and through his medical report complement one another and they prove penetration beyond reasonable doubt. 24. The prosecution was also tasked with proving that the appellant was positively identified as the perpetrator. PW2 testified that she knows the appellant who is her cousin. On the day of the incident, she was passing by where he was sitting on a stone and he got hold of her, closed her mouth and carried her to the farm where he defiled her. The appellant is a person well known to her she could identify him in the dock. 25. Under section 124 of the Evidence Act, the testimony of PW2 is sufficient to identify her assailant without the need for corroboration. The provision states: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is 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.” 26. Following conviction, the sentence meted on the appellant was the mandatory life imprisonment sentence as prescribed under section 8(2) of the Sexual Offences Act, as follows: “ (2) 27. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” The Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) rendered itself on the sentences prescribed under the Sexual Offences Act. It was held thus: “ We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1264/eng@2026-02-11 5

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statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious.” 28. The Supreme Court reiterated its findings in that case through its recent decision in the cases of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) and Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR). It held that until Parliament reviews the sentences imposed in statute, the courts have no mandate to review them. Conclusion and Disposition 29. In light of all the foregoing, I am persuaded that the trial court did not err in imposing the sentence since it is the mandatory statutory sentence and it is a lawful sentence. 30. Accordingly, the appeal fails on all counts and the conviction and sentence meted by the trial court are hereby upheld. 31. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 11TH DAY OF FEBRUARY, 2026. R. MWONGO JUDGE Delivered in the presence of: Appellant Present in Court Ms. Mwaniki for the Respondent Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1264/eng@2026-02-11 6

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