Charles Gitonga Ndumia v Republic

1630 hours, in Giakanja trading centre, within Tetu sub-county, intentionally touched the breast and buttocks of A.W.W, a child 6 years old, with his hands (initially it was indicated that the touching was on the vagina but corrected to breasts). 4. The accused person was arraigned in court on 3.12.2021, and he denied the charges. A plea of not guilty was consequently recorded by the Hon. Okuche. The matter proceeded for hearing on 16.12.2021. The minor was taken through voire dire by the trial court. The appellant stated that he had not been served with a medical report. The court gave the appellant two hours to read a medical report. 5. PW1 stated that the appellant found her in the playground and kissed her on the mouth. He told her not to tell the father. The appellant placed his hands on the private parts, breast, waist, and the front part of the private parts. Another lady saw her and called the father and mother, who came. The three ladies beat the appellant. 6. They went to the hospital and police station. She identified the appellant on the dock. On crossexamination, the witness stated that she had asked the appellant for a torch and a pencil. The father had given the appellant a torch. The three ladies had asked that the witness repeat three times. (It is not clear what was being repeated). 7. She stated, on re-examination, that it was lighting and not the dark. The ladies asked what happened, and she told them that Khahumba had kissed her. The appellant asked why the minor was taken to the hospital. She stated she was to be checked, if “ulikuwa umenidunga sana.” 8. PW2 was Beatrice Wanjiku Mwangi. She stated that she lived in Muthuaînî. On 2.12.202, she was at her shop at about 1600 hours. She had gone to answer a call of nature. The toilets are behind the shop. The front part of the building has shops, while the back part has residential houses. One had to get from the gate, then enter the residential gate. She saw PW1 with the appellant. The appellant could not see the witness. The appellant was touching the minor all over the body. 9. He saw Khahumba touching the minor all over the body, and on private parts, on top of the clothes. W and CW came, the appellant saw them and ran away. C called PW1’s father. W took PW1 and placed her in a chair. She stated that she had no grudge but knew the appellant. 10. On cross-examination, she stated that she had to get out of the shop to go to the toilet, which was behind residential houses. She stated that the path to the gate was a public toilet. She stated that the appellant saw her. She denied demanding Ksh 100,000/= bribe. She stated that she saw the events unfold. She denied recording the incident on her phone as she had no phone, as she was not carrying any phone or even money, as she had serious business in the toilet. 11. On re-examination, she stated that she saw the appellant 5 metres away. She saw the appellant kiss PW1 and caress her. The caressing was not on top of her clothes. She denied that they couched the child. He denied fabricating evidence or demanding Ksh 100,000/=. 12. PW3 was CWK, a businesswoman running a shop at Giakanja. She was called by a workmate, Beatrice, who asked her to come quickly, to see what was happening for herself. She left quickly and saw a man kissing the child and inserting his hands into the child’s private parts. She asked the man what he was doing to the child. He inserted one hand into the child’s body, and he was bent, kissing the child. The witness called C, the minor’s father. The father arrived about 20 minutes later and found PW1 crying. He enquired on what had happened, and the child told him what happened. 13. The father took PW1 to Giakanja Police Station. The witness stated that she had seen the assailant several months prior to the incident. He stated that as PW1 was being taken to the police station, a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1599/eng@2026-02-12 2

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mob had gathered. When she arrived at the scene, she shouted to the appellant, asking what he was doing. The appellant left; he appeared drunk. She denied having framed the appellant. 14. On cross-examination, the witness stated that she knew the appellant as CW. She stated that the appellant met the child in the compound, where no one else was present. She stated that she called the father on her own volition. She stated that she was not there when the kissing started. PW2 took the child outside as the witness called the appellant’s father, who came 20 minutes later. 15. She stated that she did not hear anyone demanding money from him. The appellant was left with the witness and the mob while the father went to the police station. It is the members of the public who took the appellant to the police station. She stated that she saw the appellant kiss the child. 16. On re-examination, she stated that the child was inside a compound and not on a public path. She stated that she did not frame anyone or demand any money from the appellant. The accused was placed in the cells, and they did not have a chance to talk to anyone at the police station. Further, the accused was not beaten by anyone and was escorted to a police station. 17. Dr. Mutuku was a medical doctor working at PGH - Nyeri. He produced the P3 form. He had worked in Nyeri since 2017. The minor was referred to the hospital by the Ndungamano station after he was sexually assaulted. The doctor examined the minor aged 6 years on 11.09.2022 and filled a P3. There was a slight bruise on the labia majora, the hymen was intact, and there was no spermatozoa. The minor had already been examined by Joyce Maina of PGH on 3.12.2021. 18. Joyce Maina, a clinical officer with a diploma in clinical medicine and surgery from Outspan Hospital, 2017, testified that she examined the minor on 2.12.2021, where the minor was kissed, touched on the chest and private parts. 19. She found a slight bruise on the labia majora, no bleeding, a normal vagina, a normal anus, and no spermatozoa. There were pus cells and leucocytes. She filed the PRC form, which she produced as Exhibit 2. 20. On cross-examination, she stated that the time of the incident is reported as 1600 hours and reported to the police on 2.2.2021. She denied that the hospital closed, as hospitals do not close, and there was no doctor shopping, since she was on duty. She stated that the clitoris was not injured, but the labia majora was injured since it is prone to injury, being the outermost cover, while the clitoris is under it. She stated that she documented everything she observed and noted in a formal manner and not as a formality. She had asked the child if she changed clothes and she answered in the negative. The bruises cause injuries immediately. The minor had been taken to another facility before the witness saw her. The child was referred to counselling. She denied being given any money. 21. On re-examination, she stated she made the observations on the PRC and recorded them herself and in a professional manner. 22. PW5 was PC Wyclifie Odhiambo, of Giakanja Police Station. He recalled that on 2.12.2021, at about 1700 hours, Moses Wagura went with a 6-year-old child to the police station, while the witness was on duty. He reported that the minor had been sexually violated by a person known to him. As he was recording the report members of the public came with a suspect, whom they had arrested; this was the appellant herein. When the minor saw the appellant, she started crying. She reported that the appellant had kissed her, pressed her breasts/chest, and private parts. He was caught kissing the minor. Two members of the public, PW2 and PW3, explained what they saw. The child was taken to the hospital, and a P3 and PRC filled. He established the child’s age through a birth certificate, which he produced as Pexhibit 3. The minor was born on 15.3.2015. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1599/eng@2026-02-12 3

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23. On cross-examination, the witness stated that the child was escorted to the hospital by a female colleague. He stated that he was arrested by members of the public on 2.12.2021 and brought to the police post at 1700 hours. He was never told that the charges were cooked. He denied helping raise cash bail. He denied demanding Nyama ya wazee. He said he could not resolve the matter since there were witnesses and evidence. He was not aware of Ksh. 100,000/= demand by anyone. He denied demanding money. He said they had not met, but did not rule out the possibility of meeting since he is a frequent visitor to butcheries at Giakanja. He investigated the matter, hence the charge. He said that he took 45 minutes to record statements. He recorded his statement last. 24. The prosecution closed its case, and the appellant was placed on his defence. Section 211 of the Criminal Procedure Code was complied with. The appellant opted to tender sworn evidence and call two witnesses. 25. The appellant testified that he was on his normal duties at about 1600 hours. He stated that he used a private path bordering a shopping centre and saw a child. The appellant was given a torch three days earlier by the minor’s father, but had not returned. He had not returned the torch when he met the minor. He gave the minor a pencil, Ksh 10/= he had promised her, and a daily newspaper to cover her books. The conversation lasted minutes, and the child walked away. 26. He went to take his beer at Giakanja. An hour later, he saw the minor’s father and W. They called him. They went outside PW2’s shop. The shop is in front of the minor’s home. PW2, upon seeing the appellant, shouted rape. The members of the public, Boda Boda, gathered, and he took himself to the police post. He stood at the police station when the two women followed him there. A meeting was held between all the 5 prosecution witnesses and the child. Minutes later PC Odhiambo locked him up in the cells. He went to the police post to find out what the two women were up to. 27. He proceeded that PW2 and PW3 demanded Ksh 100,000/=. The police officer did not want the case to proceed as it was weighty, and that is why the appellant was following up the case. He denied committing the ofience as it was broad daylight. He maintained his innocence. 28. He stated that he knew the child and the father was his workmate. He stated that he saw PW2 while speaking with PW1. He stated that he had known PW2 for a long time. PW1 said that W came to call him from the bar. 29. PW1’s mother was his girlfriend, and he had difierences with PW2 for a long time. PW2 was taking advantage of the situation. He stated that PW1 was coached when he went to the bar. No other witnesses were called. 30. The court found him guilty of the ofience and sentenced him to 10 years imprisonment. Subsequently, the Appellant filed a review vide Miscellaneous Rev. E009 of 2024 which was dismissed. The court delivered a ruling now reported as Ndumia v Republic [2024] KEHC 15542 (KLR). The court made the following finding: I have perused the proceedings as well as submissions filed by the Applicant. In it he seeks forgiveness and states that he has reformed whilst in prison. The Applicant has relied on the Muruatetu case. However in the case of Joshua Gichuki Mwangi & Others Petition No. 018 of 2023 the Supreme Court of Kenya upheld as constitutional the mandatory minimum sentences provided for by the Sexual Offences Act. Section 11(1) under which the Applicant was convicted provided for a mandatory minimum sentence of ten (10) years upon commission of an ofience under this section. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1599/eng@2026-02-12 4

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10. Under the doctrine of “Stare desis’ the decision of the Supreme Court in the Joshua Mwangi case is binding on this court. As such the minimum sentence imposed upon the Applicant was lawful and this court cannot interfere with the same. 11. Finally I find no merit in this application for review of sentence. The same is dismissed in its entirety and the sentence imposed by the trial magistrate is hereby confirmed. 31. Whether or not there was leave granted, I find that the matter has already been dealt with by a court of coordinate jurisdiction. There is no room to appeal any further to this court. Indeed, I cannot find the order granting leave to appeal out of time since the ruling referred in Criminal Revision E009 of 2024 was not a leave to appeal out of time. 32. Without leave, the appeal is fatally defective and untenable in law. Further, the issues raised are res judicata, having been addressed in the case above. This court cannot, by craft, take up jurisdiction it does not have. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the supreme court stated as doth: “ This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 33. The court will therefore assume jurisdiction where it has and eschew jurisdiction where none exists. There is no jurisdiction to deal with matters herein. In the circumstances, the appeal is dismissed for being res judicata and for being filed without leave of the court. Determination 34. In the circumstances, I make the following orders: a. The appeal on conviction and sentence is dismissed for being filed out of time and for being res judicata. b. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 12TH DAY OF FEBRUARY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Ms. Kaniu for the State Appellant present Court Assistant – Michael Page 4 of 4 M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1599/eng@2026-02-12 5

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