Gilbert Koech Mutai v Republic

a. That the trial court erred in both law and fact by failing to establish that the prosecution did not prove the case of defilement beyond reasonable doubt. b. That the trial court erred in law and in fact in conducting and arriving at a decision while relying on evidence that was full of contradictions and without analysing the evidence on record. c. That the trial court erred in law and in fact in failing to appreciate that the prosecution case lacked corroborative evidence to support its case. 7. This being the first appellate Court, its 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 arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.) 8. Pw1 Moses Kibet Sang, the village elder of Kenegut, testified that sometimes in December, 2025 the complainant approached him whilst crying stating that the appellant whom she was married to had chased her from his home asking her to go back to her home. 9. That the complainant informed him that she had been married to the appellant for three weeks. That she informed him that she was in Grade 7 in a school at [Particulars withheld]. That he knew the appellant who was a close neighbour but had not seen the complainant at his place and this was the first time he was seeing the complainant. That he called the police who came and took the appellant to the police station. 10. In cross-examination, he told the court that though he lived close to the appellant, he never visited other people’s homes and thus could not know if the complainant was indoors. 11. The complainant, DC testified as Pw2. She stated that she was in Grade 9 at [Particulars withheld] Primary School and that she lived with her mother and 3 siblings near the school. That on the 9/11/2024, she went for a church meeting where she met the accused who sent two girls to relay his love for her but she rebuffed the same stating that the appellant was too old for her. 12. That the appellant subsequently sent 3 boys and she gave in. That the following Monday, the appellant and the 3 boys and a girl came to her place and before reaching her home, send the girl, one C, to come and inform her that he loved her and wanted to marry her. 13. That as her mother was home, she gave C her clothes and when questioned by her mother, she informed her that she was giving C a sweater she had borrowed at school. That the following day, a Tuesday, there was some celebration rites for boys where her mother instructed her to take a gift to one of the boys and after completing the task and having met the appellant at the celebrations, the complainant proceeded to the appellant’s home. That her mother thought she had spent the night at her sister’s place but on the third day she heard that her mother and family were looking for her. 14. That 3 weeks later the area chief had not known her and that is when the appellant asked her to pick her clothes and go back home and as she thought her mother and brother would beat her, she proceeded to the chief for assistance. That police were called and they proceeded to look for the appellant whom they arrested. 15. That while she stayed with the appellant, they would sleep together where the appellant would remove both their clothes and “insert his peeing organ into hers.” That the appellant did not use any condom and that she felt a lot of pain. That this continued for a week after which the appellant started frustrating her by refusing to bring food home and instead cook in the morning when he returned. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1359/eng@2026-02-12 2

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16. In cross-examination, she stated that the appellant was the first person to ever have sex with her. 17. Pw3, Kipyegon Alex Ngetich, a clinical officer at Fort Ternan County Hospital presented the complainant’s treatment sheet and P3 form. It was his testimony that on examining the complainant he found no physical injuries on the head, scalp, lower & upper limbs. That on vaginal examination, no lacerations were noted but that there was a white thick fluid which impressed with possible infection of candiasis. 18. That there was no hymen though the same was not freshly broken, the cervix and posterior phoenix were normal and that the vaginal walls were inflamed a sign of possible vaginitis secondary to infections. That on high vaginal swab, there were no spermatozoa seen but there were several epithelial cells. That upon carrying out a urinalysis test, it appeared cloudy/whitish with leucocytes of two pluses signifying an infection. 19. That when the complainant later calmed down, she informed him that she had sexual relations with two people one of whom was the appellant. 20. That the appellant was similarly tested and when the urinalysis was conducted, it appeared cloudy/ whitish with leucocytes of two pluses signifying an infection. That as a result of the similar results of the urinalysis of both the appellant and complainant, he concluded that penetration had occurred. 21. Pw4 No. 24xxxx PC Mohammed Dayijib from Girimori Police Station corroborated the testimony of Pw1 regarding the appellant’s arrest. He testified that when he and his colleagues arrived at the scene, he found the appellant apprehended and tied with ropes by Pw1 as well as the complainant. That Pw1 confirmed to them that he had got the appellant from his house at Kenegut. That he interviewed the complainant who confirmed that she was living with the appellant, a 15-year-old, for about 2 months. He produced a Birth Certificate that showed that the complainant was born on the 8/11/2009. 22. In cross-examination, Pw4 testified that the appellant was arrested by Pw1 who took him to his house so as to protect him from members of the public who were baying for his blood. 23. When placed on his defence, the appellant elected to give an unsworn testimony denying that he committed the offence and instead laid the blame of his arrest on the village elder, Pw1. He stated that he had differences with Pw1 arising out of the fact that he had leased a piece of land that Pw1 similarly desired. 24. It is on the foregoing evidence that the trial court found the appellant guilty, convicted and sentenced him accordingly. 25. Section 8 (1) as read with section 8 (3) of the sexual Offences Act establishes the offence of defilement as follows: - 26. “ 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(3) 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.” The specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: a. Age of the complainant; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1359/eng@2026-02-12 3

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b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and c. Positive identification of the perpetrator. 27. The age of the victim of defilement is an essential element because defilement is a sexual offence committed against a child who under the Children’s Act is a person below the age of 18 years. In addition, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed as per the penalty clauses in the Sexual Offences Act. The younger the child, the more severe the sentence. 28. In this case, there was no dispute over the complainant’s age. Pw4 testified that the complainant was 15 years old and produced her Birth Certificate that showed that she was born on the 8/11/2009 and was therefore 15 years old at the time of the offence. 29. On penetration, section 2 of the Act defines penetration as follows: “ the partial or complete insertion of the genital organs of a person into the genital organ of another person.” 30. The complainant testified how the appellant had defiled her. She when she started living with the appellant, he would remove both their clothes and “insert his peeing organ into hers.” That the appellant defiled her without using a condom. On this issue, it has been held in several occasions that a fact of rape or defilement can be proved by oral evidence and circumstantial evidence without necessary calling for medical evidence. This is in line with section 124 of the Evidence Act which states that corroboration is not necessary in sexual offences. 31. In the present case, the findings of the clinical officer who testified as Pw3 was that the complainant had been penetrated. That though the hymen was not there, it had not been freshly broken at the time of the examination thus corroborating the complainant’s testimony that she had been defiled over a long duration of time. 32. Further, Pw3 testified that the urinalysis exam he undertook on both the complainant and the appellant showed that they were both infected with the same Sexually Transmitted Infection, candidiasis. This is prima facie evidence of penetration hence there can be no doubt that penetration was occasioned on the complainant. 33. The final issue is whether the appellant was positively identified as the perpetrator. The appellant was well known to the complainant who testified that he spent several days with her. That the appellant had previously approached her at a church function and even followed her to her home. From the foregoing, it is clear that the appellant was not a stranger to the victim having lived together under the same roof for about two months. 34. In his defence, the appellant denied the charge. He raised an alibi defence that he was implicated of the charges because of a purported land dispute between him and Pw1, the village elder. He claimed that the latter had a grudge against him because he, the appellant, had acquired a piece of land that Pw1 desired. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1359/eng@2026-02-12 4

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35. The law is that when an accused puts forward an alibi defence, he does not bear any burden to prove its falsity or truth. The burden always remains with the prosecution. In Victor Mwendwa Mulinge v Republic (2014) eKLR the court said: “ It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution ...” 36. The governing principle on alibi defence is that a failure to disclose an alibi at a sufficiently early opportunity to permit it to be investigated by the police is a factor which may be considered in determining the weight given to it. See Charles Kasena Chogo v Republic [2019] e KLR. 37. In the present case, the appellant’s alibi never came up at any time during the cross-examination of any of the prosecution witnesses. It seems to be an afterthought and I am in agreement with the trial court that the appellant’s defence failed to raise any reasonable doubt regarding the evidence presented by the prosecution. I thus find that the prosecution proved its case beyond reasonable doubt. 38. The appellant complained that his conviction relied on contradictory evidence however he failed to specify which particular evidence was contradictory. 39. In MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment), the court cited with approval the case of Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 as follows: “ With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 40. In the present case, this Court has carefully considered the evidence of the prosecution witnesses but is unable to find any contradictions or inconsistencies in their testimonies. And, if at all there were any, the same were not material enough to warrant interference with the conclusions arrived at by the trial court. 41. Taking all the foregoing into consideration, I find that the appellant’s conviction was safe. I uphold the trial court’s conviction of the appellant. The Court therefore finds that the appellant’s appeal is without merit and is hereby dismissed. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF FEBRUARY, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1359/eng@2026-02-12 5

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