James Waweru Andrew v Republic

4. The Appellant entered a plea of ‘Not Guilty’ to both charges and the trial commenced before the Magistrates’ court on 17th August 2022. The prosecution called a total of eight (8) witnesses in support of their case. 5. The Complainant SMN testified as PW4. The complainant told the court that she was fourteen (14) years old and was a class 8 pupil at Wanguru Primary School. She stated that she knew the accused ‘Andrew Waweru’ as he resided near her grandmother in Nduma area. 6. The Complainant testified that on 16th July 2021 at about 2.00pm she left her home in order to escort her young cousin one ‘Peter’ to his home in Nduma area. That she spent that night in the home of one ‘Njambi’ who was her friend. 7. The following day on 17th July 2021 the complainant met up with her friend called ‘Veronica’ who requested the complainant to accompany her to the home of her boyfriend called ‘Gora’. The two girls walked to Muthithu-ini area to the compound of the parents of ‘Gora’. They went to his house which was a wooden house with one bed-room. According to the complainant both she and Veronica spent the next five (5) days in that house with ‘Gora’ and the Accused. 8. The complainant stated that she and Accused slept on a mattress on the floor and that she had sex with the Accused whilst ‘Veronica, and Gora slept on the bed and had sex together. 9. The complainant told the court that on 24th July 2022 police from Murang’a Police Station raided the house they were in. The police found Accused, ‘V’ and the complainant sleeping in the bed. They were all arrested and taken to the police station. They were later transferred to Mukurwe-ini Hospital for examination. The two girls were then released to go home whilst the accused was detained and eventually charged with Defilement. 10. PW1 VWM told the Court that she was aged thirteen (13) years and was a class 8 pupil at Kiamurathi Primary School. PW1 confirmed that the complainant was her friend. 11. PW1 stated that on 17th July 2022 she attended the church service at 10.30am. As she left the service she met with the complainant and the PW1 requested the complainant to accompany her to the home of her boyfriend one Gora. The complainant acceded to that request and the two proceeded on foot to Muthuthu-ini village. They spent the night in the house of this ‘Gora’. 12. The next day 18th July 2022 the accused came to the same house. PW1 told the court that the two girls stayed in that house with Gora and Accused for ‘five (5)’ days. PW1 states that during that period she and her boyfriend slept on the bed whilst the complainant and the accused slept on a mattress on the floor. She states that she and Gora had sexual relations several times while Accused and the complainant also had sexual relations on the mattress where they were sleeping. 13. On 24th July 2022 Police raided the house and found the two girls sleeping on the bed with the accused. Police arrested them and took all three to the police station. Later the two girls were taken to Mukurweini Hospital for medical examination. 14. PW2 AW was the mother of the complainant. She told the court that on 16th July 2022, the complainant left home to escort her cousin back to his home. That the complainant did not return that night. For the next five (5) days PW2 continued to search for her daughter. 15. On 24th July 2022, PW2 received a phone call from the village elder informing her that her daughter had been arrested and was being held at Mukurwe-ini Police station. The next day PW2 went to Mukurweini police station where she found her daughter being held with another girl called Veronica. PW2 was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1872/eng@2026-02-20 2

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told that the two girls had been arrested in the house of the accused. That the two girls had been found asleep in bed with the accused and that both had been defiled. PW2 later took her daughter home. 16. PW3 JN is the complainant’s aunt. She confirms that her son ‘Peter’ had visited the family of the complainant on 16th July 2022. According to PW3 her son returned home on the same day at 3.00pm. Later that evening the complainant’s mother called PW3 enquiring about her daughter’s whereabouts. By the following day the complainant had still not returned home. PW3 phoned the area chief to report that the child was missing. 17. PW3 went on to state that they continued to search for the complainant for five (5) days. On 24th July 2022 PW3 was alerted by a friend that the girl had been arrested by police. She went to Mukurweini Police station and was referred to the hospital where she found the two girls being examined. PW3 stated that police informed them that the two girls had been arrested in the house of the Accused – that they were found in bed with a man. 18. PW5 Edward Muchiri is the Assistant chief of Thuita Sub-Location told the court that on 24th July 2022, he went to the house of the accused where they found the accused and two girls in one bed. The girls appeared to be underage thus PW5 arrested them all and escorted them to the police station. 19. PW6 PC Lucy Ngari was the investigating officer. She told the court that on 24th July 2022 at about 3.40 pm Police from Muthuthu-ini police post brought the accused to Mukurwe-ini police station with two (2) girls. PW6 recorded statements from the two girls who were minors and then escorted both to the hospital for medical examination. Upon receiving the medical reports the accused was charged. 20. PW8 Simon Mwaniki is a clinical officer attached to Mukurwe-ini hospital. He produces the medical reports in respect of the two girls. 21. Upon closure of the prosecution case the Appellant was found to have a case to answer and was placed on his defence. The accused opted to give an unsworn defence in which he totally denied having defiled the complainant. The Appellant called no witnesses in his defence. 22. On 19th January 2023 HON. D. N. Bosibori, Senior Resident Magistrate delivered her judgment in which she convicted the Appellant on the main count of defilement. After listening to the Appellant’s mitigation the trial magistrate sentenced the Appellant to serve nineteen (19) years and six (6) months in prison. Being aggrieved by both his conviction and sentence the Appellant filed this petition appeal which appeal is premised on the following grounds;“ 1. That, the trial magistrate erred in both matters of law and fact by failing to consider that I was just arrested for being in the company of school going children. 2. That, the trial magistrate erred in law and fact by failing again to find that the medical report was [not] inclusive and I was not also examined. 3. That, the trial magistrate erred in law and fact by failing to appreciate that the medical evidence is inclusive. 4. That, the trial magistrate erred in law and fact by failing to consider that the elements of the offence charged was not proved to the required standard. 5. That, the trial magistrate erred in law and fact by failing to observe that the crucial witnesses were not called upon to testify prosecution did not prove their case beyond reasonable doubts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1872/eng@2026-02-20 3

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6. 23. That, Trial magistrate erred in law and fact by rejecting my sworn evidence which was not challenged by the prosecution side without cogent reasons to do so. Since I cannot remember all what transpired during the hearing of my case, I kindly beg this hon court to furnish me with my court record and a copy of the judgement.” The appeal was canvassed by way of written submissions. The Appellant filed written submissions which are not dated whilst the Respondents relied on their written submissions dated 5th November 2025. Analysis And Determination 24. I have carefully considered the record of appeal as well as the submissions filed by both parties. This is a first appeal in which the High Court is required to review the evidence adduced before the Lower Court and to draw its own conclusions on the same. 25. In Okeno vs Republic[1972] E.A 32 the Court of Appeal set out the duties of the first appellate Court as follows:“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh 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 the conflicting evidence and draw its own conclusion…………. It is not the function of a first appellate court merely to securitize the evidence to see if there was some evidence to support the lower courts finding and conclusions. It must make its own findings and draw its own 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.” 26. Similarly in David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated as follows;“ The duty of the first appellate court is to analysis 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 conclusion as those of the Lower Court. It may rehash those conditions. 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 decision.” 27. In Kenyan Law there exists the presumption of innocence. The Accused has no obligation or duty to prove his/her innocence. The Appellant had been charged with a criminal offence. As such the burden lay on the prosecution to prove each aspect of the case beyond reasonable doubt. 28. In the case of Republic vs Ismail Hussein Ibrahim [2018] eKLR the Court held that “ The burden is upon the state to prove beyond reasonable doubt that the defendant is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant’s guilt but it does not mean that the defendants must be proved beyond all possible doubt.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1872/eng@2026-02-20 4

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29. The Appellant faced a charge of Defilement. In the case of Charles Wamukoya Karani vs Republic [2013] eKLR the Court set out the critical ingredients of a charge of Defilement as follows:“ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 30. The age of the victim is a critical factor in a charge of defilement as the law provides for the sentence to be imposed (upon conviction) based on the child’s age. 31. Rule 4 of the Sexual Offences Rules states that “ When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.” 32. In the case of Francis Omuroni vs Uganda, Criminal Appeal No. 2 of 2000, the Court of Appeal of Uganda stated as follows:“ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and commonsense……..” 33. Similarly in Edwin Nyambogo Onsongo vs Republic [2016] eKLR the Court stated thus “ …………………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 valuable.” [Own emphasis] 34. In this case the complainant herself told the court that she was fourteen (14) years old having been born on 16th June 2008. PW2 who was the complainant’s mother stated that her daughter was fourteen (14) years old. She stated that the complainant’s birth certificate got lost. However PW2 produced in court the complainant’s Birth Notification Serial No. 307010 Pexhb 1. 35. PW2 also produced in court the complainant’s Baptism Card Serial No. 085 issued on 24th June 2018 by the AIPCEA Church. I have perused both documents. They both indicate that the complainant SMN was born on 16th June 2008. Neither document has been challenged and/or controverted. 36. Finally on this question of age there is the evidence of PW7 Ben Oyugi a dental Officer attached to Mukurwe-ini Hospital. He produced in court an age assessment report dated 29th August 2022, Pexhb 7. PW7 told the court that the complainant was assessed and her dental age was assessed to be between 13-14 years. This was expert medical evidence which again was neither challenged nor controverted. 37. I therefore find that the prosecution did avail credible and valuable evidence of the age of the complainant. I further find that it was proved beyond reasonable doubt that the complainant was aged fourteen (14) years at the time of this incident and was therefore a minor in law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1872/eng@2026-02-20 5

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38. The next element of the offence of Defilement which must be proved is the fact of penetration. Section 2(1) of the Sexual Offences Act 2003 defines penetration as “ the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 39. The complainant told the court that she was defiled severally between 19th June 2022 and 24th June 2024. In her evidence the complainant gave a very graphic account of what transpired. In describing the first Sexual encounter the complainant states “ I had sex with James on two occasions. On 19/7/2022 we had spread a mattress on the floor by 9pm. He used his penis to have sex with me. He placed it in my vagina. He had shorts on. He removed his shorts to his ankle length. He was also wearing a boxer. He also removed the boxer to his knee length. I removed my clothes, a trouser on one leg. I also removed my innerwear from one leg. I had worn a t-shirt and a sweater. I only removed the sweater. I lay down as he lay on top of me. I faced on the side. I faced up as he faced downwards. The lights were switched off……………….Andrew and I covered ourselves with a blanket. The sex lasted for some time until midnight………” 40. Regarding the second incident of defilement the complainant states as follows:“ On 22/7/2022 at night in Ngure’s bedroom on the same mattress on the floor. ‘V’ and Freddie were present and on the bed. He used his penis to insert in my vagina. We were both naked. We each removed our clothes………..” 41. Given the very detailed nature of the complainant’s narration, I find that this was not a concocted story or a flight of fancy. The complainant was describing in minute detail exactly what had transpired between herself and the appellant. 42. The evidence of the clinical officer PW8 corroborated the complainant’s evidence that penetration had occurred. PW8 produced the complainant’s P3 form Pexh 2 which indicated that upon examination she was found to have old tears in the hymen. A white discharge indicative of an infection as also noted. PW8 produced the PRC form dated 24th July 2022 Pexb 3. The forms produced by the clinical officer are proof that indeed penetration did occur. I therefore find that this limb of the offence of Defilement was proved beyond reasonable doubt. 43. The final and crucial question in a case of defilement would be the identity of the perpetrator. In other words was sufficient evidence adduced to prove that it was the appellant who defiled the complainant. 44. The complainant herself identified the appellant as the man who defiled her. The complainant narrated she had accompanied PW1 to Muthuthu-ini area where PW1 was going to visit her Boyfriend. That upon arrival there the two girls met two men at the house one Gora (the boyfriend of PW1) and ‘Freddie’. The complainant stated that on the first night PW1 and Gora slept on the bed whilst she and this ‘Freddie’ slept on a mattress on the floor and had sexual relations. 45. The complainant stated that on 19th July 2022, the appellant whom she refers to as “Andrew” came to the house. The complainant states that on that night she slept on the mattress with the appellant and they had Sexual relations. That they went on to have sex again on the night of 22nd July 2022. 46. This is one of the rare cases where there is a witness to a defilement. PW1 confirms that she had requested the complainant to accompany her to visit her PW1’s boyfriend. She states that the two https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1872/eng@2026-02-20 6

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girls stayed there for five (5) days. That during night PW1 and her boyfriend would sleep on the bed whilst the complainant slept on a mattress on the floor with the appellant. In her evidence under Crossexamination PW1 says;“ ……………I slept on the bed with my boyfriend Gora. Waweru defiled S on one day on Friday. He defiled her only on Friday in the house. He defiled her on the mattress on the floor…….” 47. PW1 was categorical that the complainant and the appellant engaged in sexual intercourse. She states that she saw a whitish stain on the front of the complainant’s trouser. 48. Both PW1 and the complainant identified positively identified the appellant in court. The appellant was a man who was known to both girls. They both identified him by name. In her evidence the complainant says “ I know the accused. I used to see him. He is called Andrew Waweru. I know his home. He resides near my grandmother in Nduma area……” 49. This is therefore evidence of recognition which in the case of Anjoni And Others vs Republic(1980) KLR, was held to be “ more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 50. It is important to note that the two girls did not have only a brief or fleeting glimpse of the appellant. They both state that the appellant came to the house they were in and stayed with them there for at least four (4) days. Thus they saw the appellant continuously both night and day over a period of time. They had ample time and opportunity to see and identify the appellant. 51. PW5 who was the assistant chief told the court that on 24th July 2022 he accompanied police to the home in question. Upon entering the bed-room they found the appellant in bed with the complainant and PW1. This evidence of arrest only further confirms the identification of the Appellant. He was caught red-handed in bed with the complainant. 52. In his defence the appellant vehemently denied having defiled the complainant. The appellant in his defence admitted that he did go to the home in question in Muthuthu-ini area but says that he only went there to look for his friend ‘Gora’. The Appellant admits that he found two girls at the home and they told him to wait for ‘Gora’ who had gone out briefly. He declined to wait and left the compound. 53. The appellant says that he returned to the home on 24th July 2022 when again he found the two girls and one ‘Kanairo’. That he was then arrested for being in the company of minors. 54. Firstly for an adult man to merely be in the company of minors is not an offence and would not lead to an arrest. Further why would the chief PW5 and the arresting officer PW6 claim that the appellant was found in bed with the two girls if this was not the case. 55. The appellant has not alleged the existence of any grudge between himself and these witnesses that would lead them to tender false evidence against the appellant. Equally there is no evidence of a preexisting grudge between the two girls and/or their parents and himself. The girls had no reason to lie against the appellant. 56. Based on the evidence on record I am satisfied that there has been a clear positive and reliable identification of the appellant as the man who defiled the complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1872/eng@2026-02-20 7

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57. In his submissions the Appellant took issue with the fact that he was not subjected to a medical examination. He submitted that due to the omission the medical evidence was not inclusive, rendering his conviction unsafe. It is not a requirement that a suspect in a case of defilement be subjected to medical examination. The anatomy of a man is very different from that of a woman. The male anatomy unlike the female anatomy would not have any mark or indication to support an allegation of defilement. 58. The court cannot end without addressing two key issues. Firstly it has been shown that the complainant did not tell the truth when she gave her name to the police. Instead of giving her correct name she identified herself to PW7 as ‘Anne Wanjiru Mwangi.’ This is the name police used on the complainant’s medical documents. The complainant also stated that upon arrest, she initially lied to the police and stated that she had not been defiled. 59. The complainant later admitted that she had given the police a false name, which was the name of one of her friends. Does this mean that the complainant’s evidence could not be relied upon I think not? 60. The complainant was a young girl of fourteen (14) years. She obviously feared the consequences of her actions and wrath of her parents which led her to lie about her identity and what had happened to her. As I have stated earlier the evidence of the complainant was properly corroborated by the other witnesses. 61. Secondly from the evidence it is quite evident that the complainant was a willing participant in the sexual activity. She willingly accompanied PW1 to the home and willingly stayed there for five (5) days. Both PW1 and the complainant could be called “Streetwise” PW1 who was only 13 years old was going to visit a man whom she referred to as her ‘boyfriend’ whilst the complaint happily went along. By her own admission the complainant had sexual intercourse with two (2) different men during the period in question – the Appellant and one ‘Freddie’ 62. From her own narration the complainant willingly slept with the appellant. Does her consent negate the offence of defilement. Not at all! The morals of the complainant are not on trial here. 63. Defilement is what is known as a strict liability offence. This means that the consent or otherwise of the victim is of no consequence. The offence of defilement is complete once penetration with a minor is proved. 64. Based on the above I am satisfied that the conviction of the appellant by the trial court was sound and I do uphold that conviction. 65. Following his conviction the appellant was allowed an opportunity to mitigate. Section 8(3) of the Sexual Offences Act provides that “ (3) 66. 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.” [Own emphasis] The law provides for a minimum mandatory sentence for this offence. In case of Republic vs Mwangi & Others [2021] eKLR the Supreme Court upheld the constitutionality of minimum mandatory sentences as provided by the Sexual Offences Act. The learned trial magistrate did take into accounts the period of time which the appellant had spent in remand during his trial and reduced the sentence proportionally. As such I find that the sentence of nineteen (19) years and six (6) months imposed upon the appellant was lawful and confirm that sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1872/eng@2026-02-20 8

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67. Finally I find no merit in this appeal against the conviction and sentence. The conviction of the lower court is upheld and sentence is confirmed. The Appeal is dismissed in its entirety. DATED IN NYERI THIS 20TH DAY OF FEBRUARY 2026 …………………………… MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1872/eng@2026-02-20 9

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