Joshua Mutua v Republic

3. That the Hon. Trial Magistrate erred in matters law and fact in not finding that the prosecution never proved penetration of the complainant’s genital organ and I was not properly identified as the perpetrator of the offence charged. 4. That the Hon. Trial Magistrate erred in both law and fact in convicting the Appellant to a harsh sentence putting in mind the age of the appellant as at the time of the arrest. 3. The Appeal was canvassed via written submissions. By his submissions dated 5th February 2025, the Appellant in urging the first ground of appeal asserted that his rights under Article 49(1)(f) of the Constitution were infringed. Because, having been arrested on 29th December 2022 as stated in the charge sheet, he was arraigned in court on 3rd January, 2023. It was his case that there was no explanation for the delayed arraignment, and he cited the case of Thomas Patrick Gilbert Cholmondeley v Republic (2008) eKLR. 4. Regarding the second ground, the Appellant attacked the voir dire examination of the complainant, terming it unprocedural. He took issue with the fact that while the trial court’s finding was that the minor was intelligent and understood the importance of telling the truth, the court directed that the minor witness would give unsworn testimony. And without giving reasons for the direction. Here the Appellant citing Johnson Muiruri v Republic (1983) KLR 445 to his aid. 5. He argued in support of the third ground that the ingredients of penetration and identification were not proved beyond reasonable doubt, as required under the Sexual Offences Act. Also contending that the victim and her mother did not state that penetration occurred and the manner in which it occurred. It is his case that the mere fact that medical evidence showed that the minor’s genitals were swollen, bruised labia majora and labia minora and that the hymen was missing was not adequate proof of penetration. He cited the doctor’s statement in cross examination that the hymen could be breached due to other factors. On this score, he relied on the High Court decision in Langat Dinyo Domokonyang v Republic (2017) eKLR. Further, the Appellant highlighted the absence of spermatozoa in the minor’s genitals as evidence negating penetration. 6. Attacking the conviction, he asserted that the case was poorly investigated, and key doubts were never resolved. Here reiterating his defence statement regarding his dispute with PW1, conflicting testimony by PW1 and PW2 as regards the Appellant’s position as an employee of PW1 in the material period, and failure by the court to call crucial witnesses such as his neighbor, and PC Kirui, the latter who was said to have received the initial complaint. He placed reliance on the Court of Appeal case of Patrick Kabui Maina & othersv Republic CR APP No. 9 of 1986. 7. The Respondents’ submissions are dated on 15th July, 2025. Describing the evidence of penetration as overwhelming, the Respondents highlighted the evidence by PW1 that she caught the Appellant inside her shop and in the act of defiling the minor complainant, and immediately raised alarm, leading to his arrest. Which account was confirmed by the victim minor and, and medical examination as documented in the P3 form. Referring to the definition of penetration in Section 2 of the Sexual Offences Act, to include the slightest insertion of a genital organ, as affirmed in Mohamed Bachero v Republic [2015] eKLR, the Respondents contended that the trial court’s finding that penetration was proved beyond reasonable doubt was correct. 8. On the issue of identification, the Respondents pointed out that the incident occurred inside the victim’s parents’ shop, and the Appellant was caught at the scene and never left before police arrived. Giving the victim and her mother the opportunity to see and identify him, more so as he was already well known to them. As a result, there was no possibility of mistaken identity, and the prosecution successfully proved positive identification of the Appellant beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2249/eng@2026-02-24 2

page 2 of 9

10. On the question of the age of the complainant, the Respondents pointed to oral evidence by PW1 and PW2 as well documentary proof by way of the clinic card produced as an exhibit, indicating that the minor complainant was born on 12th September 2015. Thus, the ingredient was properly established. 11. Regarding the sentence of forty years imprisonment imposed by the trial court, the Respondents invoking current jurisprudence emanating from recent decisions by the Supreme Court such as SOO v Republic 2025] KECA 796(KLR) and Republic v Julius Kitsao Manyeso [2025] KESC 16 (KLR), emphasized adherence to statutory minimum sentences, particularly in defilement cases involving minors. And submitted that Section 8(1) as read with Section 8 (2) of the Sexual Offences Act prescribes a mandatory minimum sentence of life imprisonment where the victim is aged eleven years or below. Hence, given the age of the complainant, the sentence of forty years imprisonment imposed by the trial court was unlawful. The court was therefore urged to substitute it with the lawful sentence of life imprisonment as required by law. 12. In the Respondents’ view therefore, the appeal lacked merit as the conviction was well supported by credible evidence and further that there was no proof of violation of the Appellant’s constitutional right to a fair trial. Consequently, the Respondents prayed for dismissal of the appeal. Analysis and Determination 13. The court has considered the record of the lower court, the grounds of appeal and submissions on this appeal. The duty of this court sitting as the first appellate court is to re-evaluate, and re-consider the evidence adduced before the trial court with a view to arriving at its own independent conclusion. This being a first appeal the court is guided by the timeless principles expressed in Okeno v Republic (1972) E.A 32:“ 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 conclusion; 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, see Peters v Sunday Post (1958) EA. 424.” 14. Similarly, in the case of David Njuguna Wairimu v Republic [2010] eKLR the Court of Appeal reiterated that: “ 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 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.’’ 15. Three ingredients must be proved beyond reasonable doubt in a successful prosecution for the offence of defilement, namely, penetration, age of the victim and identity of the culprit. This court must determine whether the prosecution proved these three elements beyond reasonable doubt. 16. But first, with regard to the complaint that the Appellant’s rights protected by Article 49 (1) (f) of the Constitution were violated due to the alleged unexplained delayed arraignment in court after arrest, this court is not the proper forum in which to articulate the complaint. Besides, there is no connection made between the said delay and the trial itself. While the purport of the provisions cited is clear, there was no demonstration that the Appellant’s guarantees to fair trial were adversely impacted by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2249/eng@2026-02-24 3

page 3 of 9

delay of effectively two working days, namely, December 30th 2022 (a Friday) and January 2nd 2023 (a Monday . This complaint is therefore inconsequential for the purposes of this appeal. 17. Turning now to the evidence, the prosecution case was as follows. Akinyi Mary Guok (PW1) is the mother of C.M (PW2) a 6 year- old girl. In the material time, PW1 operated a hotel at [particulars withheld] area and apparently also lived with her family in the same premises. On 29.12. 2022 she entered her hotel kitchen to warm tea and stumbled upon the Appellant who, while seated on a rock and leaning against the wall with his penis exposed was holding C.M whose trouser was pulled down, and having sex with her. The Appellant had removed the minor’s trousers and underwear. 18. Before snatching the minor, PW1 queried the Appellant’s conduct but the Appellant did not answer, and fearing for her life, she locked herself and the minor in the shop, and upon her examining the minor’s genitals noted wetness She then called her husband who subsequently came in the company of police officers including PC Jibril (PW4) of Isineti Police Station, who arrested the Appellant. The minor was escorted to hospital on the next day. PW1 stated that she had known the Appellant for about 10 years. 19. Following a voir dire examination, the trial court found C.M sufficiently intelligent and aware of the duty of telling the truth, therefore directing that she give unsworn evidence. Testifying as PW2 , C. M stated that she was 6 years old and in grade 2 in the material period; that on the material day at about 4.00pm, the Appellant having called her into the hotel kitchen had unzipped his lower garments, pulled down her trouser halfway and after removing his ‘’thing for urinating… did tabia mbaya to me… inserted his thing for urinating in mine for urinating...” She stated when her mother found them in the act, she took her away and that although she experienced pain she had not screamed. 20. Francis Nana (PW3), a clinical officer at Loitokitok sub-county Hospital testified that on 30.1. 2023 he examined C. M who had allegedly been defiled by someone known to her. He observed physical injuries consistent with recent sexual assault, including swelling and bruising of the genital area and that the hymen was missing. He associated the injuries with penile trauma. He thereafter prepared the P3 form, which he produced as Exh. 2 ; Post Rape Care (PRC) forms as Exh. 3 and treatment notes as Exh. 4 while the Appellant’s treatment notes were produced as Exh. 5. 21. PW4, a police officer attached to Isineti Police Patrol Base stated that on 29/12/2022 at 10:58pm he learned through a colleague PC Kirui of the defilement report regarding PW2, and proceeded to [particulars withheld] area in the company of another officer. PW1 led them to the Appellant inside the hotel and they arrested him and took him to Loitokitok Police Station. He produced the clinic card (Exh.1) showing that PW2 was born on 12/09/2015. 22. Upon being placed on his defence, the Appellant elected to give an unsworn statement which was tendered in writing and dated 22.06.2023. The statement was to the following effect. That in the material period he was employed by PW1 at her hotel where he also resided; that on 29/12/2022 he was on duty working alongside PW1 all day until the hotel closed at 9:00pm when they parted; that no untoward event had occurred on that date; that as he was woken up at 12:00 midnight by a knock on his door by PW1’s husband, whose voice he recognized and opened the door. To be confronted by two police officers accompanying the said husband and who arrested him on the allegations of defilement which he denied. He stated that PW1 framed him because she owed him his 3 month’s salary. 23. Several basic facts are not in dispute, including the fact that the Appellant was well known to PW1 and her family and that the Appellant was on 29.12.2022 at PW1’s hotel from where he was arrested during the night. It does seem that despite PW2’s denials, and as the trial court correctly observed, the Appellant worked at PW1’s hotel in the material period although the exact terms of engagement were https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2249/eng@2026-02-24 4

page 4 of 9

unclear. The Appellant highlighted the discrepancy in the evidence of PW1 and PW2 as to whether or not the Appellant was in the material time employed by PW1. 24. This court reviewing the matter agrees with the trial court’s resolution of the matter. These were not contradictions of any significance, and could not be deemed fatal for the prosecution case. As stated by the Court of Appeal in Joseph Maina Mwangi vs Republic Criminal Appeal No.73 of 1993:“ In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.” 25. On the ingredients of the offence, the age of the victim was proved to be 6 years in the material period, based on the mother’s oral testimony and the clinic card (Exh.1) which showed that the minor was born on 12th September, 2015. No doubt, PW2 was a child of tender years. The Appellant has attacked the outcome of the voir dire examination of PW2 which was in the form of question and answer. This court understood the Appellant’s complaint to be that the trial court’s determination that the minor was sufficiently intelligent, understood the duty to tell the truth, leading to the direction that her evidence be unsworn was not expressly stated and justified. The mere fact that no reasons were given or that unsworn evidence was received cannot defeat the voir dire examination conducted in accordance with the applicable law, and for the purposes therein. 26. Section 125 (1) of the Evidence Act which provides for the competency of witnesses generally states that ’’All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause’’. 27. While Section 151 of the Criminal Procedure Code (CPC) requires that every witness in a criminal case shall be examined on oath, Section 19(1) of the Oaths and Statutory Declaration Act makes an exception as follows: 1. 28. Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with Section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that Section.” In the Fransisio Matovu v Republic (1961) E.A 260 , the Court of Appeal for Eastern Africa held inter alia that: “ A judge, when confronted with a child of tender years called to give evidence, should himself question the child to ascertain whether he or she understands the nature of an oath, and if the judge does not allow the child to be sworn, he should record whether, in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of telling the truth”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2249/eng@2026-02-24 5

page 5 of 9

29. In the case of Maripett Loonkomok v R (2016) KECA 520 (KLR), the Court of Appeal grappled with the effect of failure by the trial court to administer voir dire examination in respect of a minor complainant who was found to be aged about 11 years at the time of the offence. The Court stated that it was firmly ‘’settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014”. 30. The Court also stated that it was equally settled that pursuant to the provisions of Sections 208 and 302 of the Criminal Procedure Code, a witness who did not give evidence on oath may be subjected to cross-examination, and cited Nicholas Mutua Wambua and another v Msa Criminal Appeal No.373 of 2006. 31. In restating the provisions of Section 19 of the Oaths and Statutory Declarations Act, the Court of Appeal stated that where, in the opinion of the court a child does not understand the nature of an oath, his evidence may be received if, in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and also if, the child understands the duty of speaking the truth. 32. Thus, whereas in the instant case the trial court while evidently well guided on the law failed to make an express finding that the minor did not understand the nature of the oath, it directed that her unsworn evidence be received, implicitly having formed the opinion that PW2 was possessed of sufficient intelligence, and that she understood the duty to of speaking the truth, to justify such reception. The Appellant’s objection in this regard appears misconceived. 33. From the evidence of PW1 and PW2, the Appellant was found by the former witness in flagrante delicto in her kitchen. The incident occurred in the daytime at about 4.00pm and for both witnesses, it was a case of recognition not identification of a stranger, making their testimony more satisfactory, reassuring and reliable. See Anjononi & 2 Others v Republic [1980] eKLR. 34. As for penetration, the testimony by PW1 and PW2 was confirmed by PW3 via medical evidence. PW1, an adult described the condition in which he found the Appellant, with his penis exposed, holding an undressed PW2 while seated and leaning against a wall, and ‘’having sex with her ‘’. This phrase cannot be understood in any other way than that the Appellant was in the process of penetrating the minor, and no different meaning was suggested to the witness, a mature adult, in cross-examination. 35. Despite her tender age, PW2 rendered a vivid account describing in a child’s modest language, what the Appellant did to her. She stated how the Appellant, having called her into the hotel kitchen unzipped his trouser, pulled down her trouser halfway and after removing his ‘’thing for urinating… did tabia mbaya to me…inserted his thing for urinating in mine for urinating...” She stated that when her mother found them in the act, she took her away and that although she experienced pain she did not scream. 36. While acknowledging the use of euphemisms by children when describing acts of sexual intercourse, the Court of Appeal in Muganga Chilejo Saha v Republic [2017] eKLR had this to say: “ Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of his body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2249/eng@2026-02-24 6

page 6 of 9

Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her.” 37. So that the reference by the minor in this case to “tabia mbaya”, taken together with PW2’s description of the transaction inside the kitchen leaves no doubt that she was referring to penetration. Immediately upon finding the Appellant in the act, PW1 noted wetness in PW2’s genitals. None of the witnesses were shaken during cross-examination, and the Appellant never put to PW2 during cross-examination the allegations of a pay dispute leading to his being framed with the offence as was stated in his defence. Which in any event would not explain the medical evidence clearly showing that upon examination on the following day, the minor had vaginal bruises and swelling on her labia majora and minora and her hymen was broken, injuries likely caused through penile penetration. Or the evidence of the minor complainant PW2 who would have had nothing to do with the alleged pay dispute between two adults. 38. The mere fact that PW3 admitted during cross-examination the existence of other causes likely to breach the hymen, in no way undermines his professional assessment of the cause in this specific case. Besides, the proviso to Section 124 of the Evidence Act empowers the court to convict for a sexual offence upon the sole testimony of the alleged victim where, for reasons to be recorded, the court is satisfied that the alleged victim was telling the truth. 39. Regarding the issue of penetration, the trial court in this case properly directed its mind and inter alia stated as follows: “ The penetration here is by way on (sic) male organ (penis into sexual organ of the female). Section 2 of the Sexual Offences Act defines penetration to mean partial or complete insertion….the slightest…penetration is sufficient to complete the crime. The law does not envisage absolute penetration into the genital nor the release of spermatozoa or semen of the male organ for the act of penetration to be said to be complete’’(sic) 40. The caption above aligns with the observation made by the Court of Appeal in Mohamed Bachero -vs Republic(2015) eKLR.with regard to the definition of penetration in Section 2 of the Sexual Offences Act. 41. The Appellant’s defence was that he was framed due to a dispute with PW1 concerning wages, and as the trial court noted, that defence was never canvassed with that witness, and PW2 would have had no axe to grind with the Appellant in that regard. Besides, the defence was completely displaced by the cogent, credible and trustworthy prosecution evidence through four witnesses and was therefore properly rejected by the trial court. Thus, the ingredients of the charge facing the Appellant were proved beyond reasonable doubt. The appeal against conviction is without merit and must fail. 42. Concerning the sentence of 40 years imprisonment, the Appellant complains that it is harsh and excessive. As pointed out by the Respondents, a conviction under Section 8(2) of the Sexual Offences Act attracts a mandatory sentence of imprisonment for life. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2249/eng@2026-02-24 7

page 7 of 9

43. The Court of Appeal in Dismas Wafula Kilwake v Republic [2019] eKLR discussed Section 8 of the Sexual Offences Act as follows: “ In Hadson All Mwachongo v. Republic (2016) eKLR, this Court stated as follows regarding the sentences prescribed by the Sexual Offences Act: "The Sexual Offences Act provides for punishment for defilement in a graduated scale. The younger the victim, the severe the punishment. Where the victim is aged 11 years or less, the prescribed punishment is imprisonment for life. Defilement of a child of 12 years to 15 years attracts 20 years imprisonment while defilement of a child aged 16 years to 18 years is punishable by 15 years imprisonment." 44. The sentence prescribed under Section 8(2) of the Sexual Offences Act is a mandatory sentence and not discretionary. As stated by the Court of Appeal in Stephen Nguli Mulili v Republic (2014) KECA 408 (KLR) while upholding the enhancement by the High Court, of a sentence of ten years awarded for an offence under Section 8(3) of the Sexual Offences Act to the minimum sentence of 15 years, the High Court is empowered under Section 354(3) (a) (ii) of the Criminal Procedure Code to enhance an erroneous sentence passed by the lower court under the Sexual Offences Act. The Court stated that the Act removed discretion in respect of minimum and mandatory sentences, especially where the victims were minors. 45. The trial court while sentencing the Appellant on 20.02.2023 to forty years imprisonment did not give any reasons for its decision. It is likely that the decision was influenced by the famous Supreme Court decision in Francis Karioko Muruatetu and Others Versus Republic SC Petition No. 15 of 2015 (2017) eKLR (Muruatetu I). The rationale in the Muruatetu I (supra) has hitherto been applied in many cases involving offences under the Sexual Offences Act. Including Christopher Ochieng v Republic (2018) eKLR and Manyeso v Republic CRA No. 12 of 2021 (2023) KECA 827 (KLR) in the Court of Appeal. 46. However, the Supreme Court in subsequent directions given in Muruatetu I in 2021 and commonly referred to as Muruatetu II, clarified that the former decision only applied to the mandatory sentence in murder cases and could not be applied to any other offences carrying mandatory sentences. More recently the Supreme Court has pronounced itself in Republic v Mwangi and Others Petition No: E018 OF 2023 (2024) KESC 34 (KLR) as follows, regarding minimum and mandatory sentences prescribed under Section 8 of the Sexual Offences Act: “ In any case, the sentence imposed by the trial court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with the sentence.” 47. Further, in Republic v Evans Nyamari Ayako Petition No: E002 of 2024 the Supreme Court in its judgment delivered on 11th April 2024 stated that: “ (51) In the instant case, the Court of Appeal in its judgment, referred to the case of Manyeso v Republic case where a different bench of the Court of Appeal cited the Muruatetu I case in stating that the rationale therein applied mutatis mutandis to the issue of mandatory indeterminate life sentence. In Muruatetu II Case we reiterated that the rationale in the Muruatetu I Case was only applicable to the mandatory death penalty for the offence of murder under Section 203 as read with 204 of the Penal Code. Further, we disabused https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2249/eng@2026-02-24 8

page 8 of 9

the notion that the rationale could be applied as is to other offences with a mandatory or minimum sentence.” 48. In the circumstances, as explained in Muruatetu II above, the decision in the Muruatetu I cannot be applied in sentencing an offender convicted under Section 8 of the Sexual Offences Act. Based on the provisions of Section 8 (1) as read with Section 8(2) of the Sexual Offences Act and flowing from the foregoing recent decisions of the Supreme Court thereon, the trial court had no discretion, as the lawful mandatory sentence for the offence for which the Appellant was convicted is life imprisonment, and not 40 years imprisonment as awarded by the trial court. 49. As properly urged by the Respondents, this Court will therefore set aside the erroneous sentence of forty years imprisonment imposed by the trial court, and substitute therefor the lawful sentence of life imprisonment. It is so ordered. In the result, the appeal has failed in its entirety and is hereby dismissed. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 24TH DAY OF FEBRUARY 2026. C. MEOLI JUDGE In the presence of: For the State: Ms. Kivali Appellant: Present C/A: Lepatei https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2249/eng@2026-02-24 9

page 9 of 9