Patrick Bundi Njagi v Republic

3. The learned trial magistrate erred in law and fact in failing to appreciate that the critical elements of defilement were not proved to the required standards occasioning a prejudice. 4. The learned trial magistrate erred in law and fact in failing to consider Article 50 (2) (p) of the Constitution which defines that every person has a right to the benefit of the least severe of the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. 5. The learned trial magistrate erred in law and fact in failing to appreciate that some of the important witnesses were not brought to testify before the trial court by the prosecution. 6. The learned trial magistrate further failed to appreciate that the instant matter was riddled with material discrepancies capable of unsettling the verdict and further misdirected herself on very pertinent issues including reliance on the accused defense to fill in the glaring gaps in defense occasioning a serious dereliction of justice. Duty of Appellant Court 4. The duty of this court as the first appellate court is to re-evaluate the evidence on record and draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses and should make due allowance in that respect. (See Okeno v R (1972) EA 32). Evidence 5. PW1 BGG, the complainant herein, gave unsworn testimony that, “I am in class 3. I am 6 years old. I was born 14th. I live with my grandmother-Kwa Muthoni. We used to live with my father. I go to [Particulars Withheld] primary school. We live with IMG, JW and mum. I am in class 6. BM is my father. Before we moved Patrick Bundi Njagi found me playing. I was alone. Mum was at work. Dad was in the shamba. Patrick held my hand he told me we go to Mushomoroni. He took me to a thicket. He bought me a cake. He told me he was taking me to a thicket. He removed my clothes and panty he removed his clothes and did bad manners. He threatened me he would kill me if I told anyone. He used his penis into my susu (points at vagina). I was in pain. I bled. There were houses far from the thicket. No one would hear me shout. A person came and told him to stop. He took me to a pub. He asked for a beer and bought me fresh and a cake. There were other people taking alcohol. My father found me and took me home. I washed dishes then I sat down. I slept outside the house. Mum came back and my brother told her I was with Bundi. Mum punished me and I revealed to her what Bundi had done. Mum went to look for Bundi commander slapped bundi and mum recorded her statement at police I was taken to Kimbimbi where I was treated and I got an injection. I bled when I was in the thicket. Patrick Bundi Njagi was jailed. He used to buy meat from my mother. Dock identification done. PW1 points at accused and states he is Patrick Bundi Njagi.” 6. On cross examination, she stated that, “I am fine. Bundi lives near my father’s place. Near the road. He got me from home. I was playing he held me by the hand. He used force. I did not shout for help. I was resisting to go but Bundi pulled me by force. The thicket is far from home. We walked for about 3 minutes. No one lives near the thicket. There are trees in the thicket. No maize plantation. Bundi removed my trouser, panty he also removed his trouser he defiled me I was in pain then he stopped. I never shouted for help. I cried but no one assisted me. Josiah Kiuma found us and he told accused to stop what he was doing. Bundi had not worn his trouser. I was only dressed in my pants. My trouser is in court today. She washed it. I do not know jose. He has a shop. Bundi stopped and he told me we leave the thicket. Bundi asked me we go he bought me a cake at Josiah’s shop. I walked with Bundi. I was limping I got to bar. Bundi took 2 beers. I was allowed into the bar. The seller told me to go home https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2633/eng@2026-02-20 2

page 2 of 8

Bundi refused. My father came for me at the bar. He took me home. We walked home. I did not tell him what was going on. He was alone. I wanted to talk to him me but he asked me to be quiet. I only told mum what Njagi had bought for me. I knew Patrick before the incident. He used to come home for goat meat. Mum found me home. She punished me then I told her what Patrick had done. Mum reported to another commander the commander slapped Bundi. Bundi taken to commander’s vehicle. It was the 1st time I was ever defiled. Before the incident my parents and Bundi were not friends. At the hospital I was treated. I was injected.” 7. In re-examination, she stated that, “Mum punished me after my brother told her I was seen with Bundi.” 8. PW2 EKM testified on oath that, “I have a family. Ian Murimi, BG, JW. BMW is my husband. I live in Kadawa I now separated with my husband. B. is 6 years old she was born in 2014 04/04/2014. 09/09/2020 I went to work at 7:00 am. Got back home at 5:00 pm. My son - IM told me ask B. where she was with Bundi. B. took off I went after her I held her by the hand I punished her and she told me Bundi had taken her and bought her a cake. Bundi took her to Mshomoroni but took her to the bush. Bundi told her to sleep he removed her panty, trouser and Bundi also removed his clothes and slept on B. B. was in pain she cried Bundi got up and dressed up and told B. not tell me or he would kill her. Bundi bought B. cake and yu fresh..Bundi took keg. They sat in a pub. Father to B. went looking for her from 9:00 am he found her 11:00 amat the pub. I went to look for Bundi. He denied. I saw a neighbour - commander I went with him to Gold police post we reported. I was sent to Kimbimbi Hospital. Commander left Bundi at the police post. Doctor confirmed B. had been bleeding. Police called Wang’uru Police Station. B. had a pink & white pant -MFI - 1 identified by PW2. I gave to the police MFI-1. It was blood stained. My children knew Bundi as a neighour he came to buy meat from me. I still live in the area. Bundi is the accused in court. I have no grudge with accused.” 9. On cross examination, she stated that, “Bundi comes from our area since I came to Ngariama in 2018. The sister was in the same group/chama with me. I had no bad blood with accused. He was not a friend. I got back home 5:00 pm. B. told me what happened. My husband never told me anything. B. had not told me anything. Bundi had promised B. a cake. He bought it. He then took her to a bush and defiled her. B. was in pain. He stopped. Commander works for the government. He works in Murang’a. He is a neighbour. He did not beat Bundi. Trouser is at home. Police only asked for panty, commander did not record a statement. He took us to Kimbimbi police. B. did not tell me about a person who found them in the bush. I did not notice anything wrong with B. but she was in pain when passing urine. I saw her problem at the hospital. I have not traded in any other business with Bundi. He was a good neighbour. They went to Mshomoroni pub.” 10. In re-examination, she stated that, “I did not notice a problem since my son told me about B. immediately I got home.” 11. PW3 George Kariuki, a Clinical officer at Kimimbi Sub County Hospital produced the complainant’s Outpatient card, P3 form and PRC form as exhibits. He testified that, “Child was irritable. Vulva inflamed with bruises, whitish discharge on vaginal entry. Inner clothes soiled with dirt and faeces. Smelling urine. Hymen torn - fresh. Negative HIV, Syphilis. Urinalysis showed presence of blood. High vaginal swab. Reddish discharge. 10 - 15 Red blood cells. No spermatozoa seen. P.E.P given, Antibiotics and pain killers. Patient seen by Consolata Murage. P3 filed by Francis Omondi who is away whole week. Consolata now works at Kerugoya hospital. Worked with her 3 years. Worked with Francis - 4 years. I can confirm their signatures and handwritings.” 12. On cross examination, he stated that, “09/09/2020 1st date patient seen at facility. Stamp dated 11/09/2020. P3 filed and PRC have same stamp and date. Cant patient card filled 1st before P3 and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2633/eng@2026-02-20 3

page 3 of 8

PRC. P3 form was issued 09/09/2020. Filled on 11/09/2020. The person might have not been there/ it was a weekend. No stamps during the weekend. Age of injury 3 days later in P3 form. Patient reviewed 09th date of incident. No samples taken from accused. It is not documented. No previous history - medical of the patient. Patient’s complaint was penetration and examination revealed that vulva was inflamed and bruises very irritable upon examination. Presence of blood and freshly torn hymen indicates there was penetration. At this age no other factors can cause vaginal injuries as these.” 13. In re-examination, he stated that, “Both documents stamped on 11/09/2020 when P3 form was filled. If P3 form filled on 11/09/2020. It shall bear the stamp of 11th patient card, lab tests and history and physical examination are relied on while filing P3 form.” 14. PW4 BMW testified that, “09/09/2020 I was home in my farm. John had come to assist me to till the land. B. my daughter was home playing. John wanted to smoke. He sent I my son to the shop. Upon return Ian found B. was not home. It was during COVID era. I sent Ian to check B. but he did not see her. I went to look for B. I kept asking people on the road. A boda boda rider from Michomoroni told me that he saw B. with Bundi. I used to see Bundi in the area. I went on and at a shop there is a club I went to the club. I found B. with Bundi. I asked why Bundi went with B. to the bar. I was annoyed I told B. we go home. It was about 1 pm I made ugali and we had lunch and went back to the shamba. At about 4:00 pm I stopped working. Mama B. returned at about 5:00 pm I told her what B. did. I am then told mama B. something she started shouting saying our child had been defiled. A crowd gathered near our place. Woman checked said B. had been defiled. A crowd went looking for Bundi I found him at his home. He denied defiling B. We took him to chief’s office but the crowd was beating up Bundi. Commander (A police officer) called police and accused was arrested. Commander took us to Gold police post where we were referred to Kimbimbi Police Post. We then went to Hospital. Matter referred to Wang’uru Police Station. The doctor informed us that the child had been defiled. I was told the child’s panty was taken to the police station. I have nothing against Bundi. I found him at a pub drunk with my child. I did not question my child I just took her home. I did not want to pick a fight with Bundi. B. said Bundi had defiled her Mishomoroni in the fields.” 15. I only asked if he saw Brenda. On cross examination, he stated that, “Accused is my friend. I do not work with him. I was in the farm with other person John. Maybe police did not record I was with John. Ian told me B. was not home. It was during COVID 19 and schools were closed. I was with John when Ian told me. John is a casual labourer from Gichugu. Ian never recorded his statement. We left him home when we went to the police. I was 11 years then. I went looking for B. Ian did not find B. all the places they would go to play together. Baba Bancy - motorcyclist told me he saw Bundi and B. on the road walking towards the shopping centre. I do not know why Baba Bancy did not record his statement. I found an opened shop behind there is a club. Kiuma is the owner of the club. Maybe he is also called Josiah. I saw B. standing looking at Bundi. She was not eating. Bundi was taking alcohol. I asked Bundi why he took B. to the club. Bundi said he had gone to buy B. a cake. There were other 2 men in the club. I do not know them. There was a lady at the counter I do not know her name. Kiuma owns the plot and shop. I did not talk to him. I only concentrated on my child. She was okey. I took B. home. She never told me anything. I had left I at home. Mama B. returned at 5:00 pm. I told her how B. had disappeared. Mama B. started shouting. Told me B. had been defiled. A crowd gathered near the road at my place. Women interrogated B. There was about 10 people when we arrested Bundi. I question Bundi what he was doing with B. Commander assisted us get to the police. Commander did not beat Bundi. I do not know why he never recorded a statement. He took us to Kimbimbi Hospital. We then went to Wang’uru Police Station. The following day is when we reported to police. I am attesting to what I saw. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2633/eng@2026-02-20 4

page 4 of 8

B. has never told me how she was defiled. Mama B. and doctor said B. was defiled. B. walked beside me I did not check how she was walking. I have no grudge against Bundi until this case came up 16. In re-examination, he stated that, “Baba Bancy operates a motorcycle at Kadawa. I only asked if he saw B. Pub is a makuti club. There is only one table (round). B. was standing she was not seated. I questioned Bundi what he was doing with B. in a club. He said he had gone to buy her cake.” 17. PW5 John Ndambiri Mureithi testified that, “09/09/2020 I was on my way to Mumbu I found Bundi with Gathura’s child. Bundi bought the child soda and cake. On my way back I found the father who asked me if I had seen his child. I told him I had seen her with Bundi. He went looking for the child. Bundi was with the child he bought something at a shop and went with the child. Bundi is the accused. He is my neighbour. I saw him at around 9:00 am. I know Bundi as a good person.” 18. On cross examination, he stated that, “I am fine. I live in Kadawa for about 10 years now. I know the accused as Bundi he is a neighbour. I saw Bundi with a child - B. at 9:00 am 09/09/2020. In my statement it is indicated I saw them at around 12:30 pm it was 9:00 am. The person who recorded my statement made a mistake. I had not been asked to record the statement earlier on. I did not know case was ongoing. I recorded my statement 15/08/2022. Father to victim recorded his statement. I was called later. I saw fundi with the child. Child was carrying a soda and cake. They were headed to where Mumbu was. The area where there is a shop. That is all I witnessed. Father to victim asked me I told him I had seen the victim with fundi. I am stating what I witnesses. Earlier I had no transport. I was called when they got my transport to court.” 19. In re-examination, he stated that, “I saw child and fundi at 9:00 am. My evidence is based on what I witnessed.” 20. PW6 P. C. Rose Sambu, the Investigating officer herein, produced the birth certificate and pink and white panty as exhibits. He testified that, “I recall 10/09/2020 in the morning I was assigned this case that had been reported. 09/09/2020 by parents of victim. Suspect was arrested. I called parent to victim who came to the station. I recorded statement. 09/09/2020 at 9:00 am B.G was home alone. Mother was at work. Father was in the shamba. Accused called her to go buy her juice and cake. Victim followed her and they went towards mishomoroni center. Accused then took her to a thicket removed her clothes and defiled her. Victim cried and accused threatened to beat her up. He them look victim to a center and bought her juice. They went to a club and accused took beer as victim sat with him. Father to the victim went to look for her. He got information that victim had been spotted with accused. He found them sitted in the bar and he took his child home. He made lunch and went back to the shamba. At 5:00 pm mother to victim got back and after getting information victim was missing during the day, she interrogated the victim who told her she had been defiled. Mother to victim informed neighbors accused was arrested. Officer was called and accused was arrested and taken to Wang’uru Police Station. Victim was taken to Kimbimbi Hospital. I issued victim with P3 form and I got all the exhibits in the case. Victim told me accused defiled her. She knew him as Bundi. I got victim’s panty which had blood stains and faeces. Victim was 6 years old at the time of offence. I got her birth certificate. Father to victim was informed by a neighbour who saw accused with victim. I interrogated the neighbour. Accused was taken from Kimbimbi Hospital by officers from Wang’uru Police Station. The officer who took accused from his home works in Western. I never found him. I never knew accused before this case. Accused was identified by the victim and mother before he was arrested within the village.” 21. On cross examination, he stated that, “I did not arrest the accused. He was arrested by mother and victim who called an officer who was their neighbour. I called complainant and mother I recorded their statements. I issued them with P3 form. I received exhibits and charged the accused before I visited the scene. Later I went to the scene. Victim showed me the scene. I did not interrogate anyone at the scene. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2633/eng@2026-02-20 5

page 5 of 8

Accused took victim to a bar that has no name. There is a shop where juice and cake was bought. I interrogated the shop keeper. I can recall the name of the shop keeper. It was the shop owner. I did not record his statement. I went to the bar when it was not open. Father to the victim found the victim inside the bar. No one else told me victim was inside the bar with accused. Officer who arrested accused at home I do not know his name or rank. He works in North Eastern Mandera. I got his contact. He was far and it got difficult to record his statement. Baba Bancy saw victim with accused he is a witness I recorded his statement on 05/08/2022. This was after I recorded other statements. Father to victim testified this year after is when I recorded the statement for Baba Bancy. I took over case 10/09/2020. I recorded statement 2 years later. He had no fare to come and record statement. There is evidence the child was defiled.” 22. In re-examination, he stated that, “The officer was called to assist take accused to police station after accused was arrested by villagers. I only went to bar and shop to establish if they existed.” 23. DW1 Patrick Bundi Chege, the appellant herein, testified on oath that, “I reside in South Ngariama. I am a farmer. I know BG we were working with the father. On 4/9/2020 I was cultivating and left the shamba around 3:00 pm B’s father came to my house and called me. He had come with other people who he left on the road. We walked and told me if I didn't know him to talk well with him I would be to died in jail. He told me to tell him what I did to his daughter. The people started to attack me. I was rescued by a person called commander. He told them to call headmen they called the sub chief but he didn’t pick the call commander took me and Baba B. to the police post and later escorted to Kimbimbi Hospital the child was taken there. I was left outside and later went inside we were examined. I cant know why the witnesses said they saw me. They framed the charges against me. My sister and mama B. are friends and I have a grudge with my sister. I never committed the offence. I was found in my house.” 24. On cross examination, he stated that, “I know the club mishomoro. It has a front and back side. There is a shade where people sit. I usually sit at the counter. The child father is known to me. I don’t know the mother well. I knew the child through the father. The child knew me. The child knew me as Bundi. I thought the child’s mother and my sister framed me as we had disagreement with my sister. They came and arrested me on 9th around 3:00 pm. I was from the shamba. I was not drunk the child’s father told me to accompany him so that I can explain what happened to the child. I did not commit the offence. The child said what her parents told her. I heard the testimony of the child. I did not defile the child. We were taken to the hospital. At 3:00 pm I was in the house. The owner of the club is called Kiuma. I cant know the person who was selling at the club. John Ndambiri is a neighbour to complainant.” 25. In re-examination, he stated that, “I was not at the club that day. The child’s father said he found me with the child at the club. No other person said I was at the club. Only blood test was done to me at the hospital. The person was said he saw me with the child had given me some work we had a grudge.” Submissions 26. The appellant cited Okeno v R (1972) EA and pandya v R (1957) EA (336), on the duty of the first appellate court. He questioned why none of the members of the public who arrested him, Baba Bancy and Josiah Kiuma were called to testify, rendering the evidence on record insufficient to sustain a conviction, and cited Michael Kinuthia Muturi v R [2011] KECA 273 (KLR). In his view, the charge against him was not proved beyond reasonable doubt and the evidence tendered was riddled with material discrepancies, inconsistencies and contradictions, and cited Miller v Ministry of Pensions (1947) 2 All ER 372, Bukenya and Others v Uganda (1972) EA 549, R v Lifchus (1997) 3 SCR 320 and Bater v Bater (1950) All ER 458. He faulted the Investigating Officer for failing to meticulously and painstakingly investigate the case to clear doubt and establish the truth. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2633/eng@2026-02-20 6

page 6 of 8

27. The respondent urged that the appellant was placed at the scene of the crime, and thus all the ingredients of the offence were proved. Analysis and Determination 28. From the grounds of appeal, the issues for determination are whether the offence was proved to the required standard, whether there were crucial witnesses who were not called to testify and whether the sentence meted out to the Appellant was excessive. 29. The ingredients of this offence, which the prosecution was required to prove beyond reasonable doubt are age, penetration and identity of the perpetrator. PW6 produced the complainant’s birth certificate, which conclusively proved that she was born on 4/4/2014, and thus aged 6 years at the time of the commission of the offence. 30. On penetration, PW3 was categorical that during examination, the complainant was irritable, vulva was inflamed with bruises, there was a whitish discharge on vaginal entry, the hymen was freshly torn, inner clothes were soiled with dirt and faeces, urinalysis showed presence of blood, and there were no spermatozoa seen. 31. PW6 affirmed that, “I got victim’s panty which had blood stains and faeces.” 32. On whether the Appellant was the perpetrator, the complainant testified that, “Before we moved Patrick Bundi Njagi found me playing. Patrick held my hand he told me we go to Mushomoroni. He took me to a thicket. He removed my clothes and panty he removed his clothes and did bad manners. He used his penis into my susu (points at vagina). I was in pain. I bled. No one would hear me shout. A person came and told him to stop. Dock identification done. PW1 points at accused and states he is Patrick Bundi Njagi.” On cross examination, she stated that, “Bundi lives near my father’s place. Near the road. He got me from home. I was playing he held me by the hand. He used force. I did not shout for help. I was resisting to go but Bundi pulled me by force.” 33. PW2 testified that, “My children knew Bundi as a neighour he came to buy meat from me. I still live in the area. Bundi is the accused in court.” 34. PW5 testified that, “09/09/2020 I was on my way to Mumbu I found Bundi with Gathura’s child. Bundi bought the child soda and cake.” 35. PW4 testified that, “A boda boda rider from Michomoroni told me that he saw B. with Bundi. I used to see Bundi in the area. I went to the club. I found B. with Bundi.” 36. Admittedly, the Appellant and the victim were well known to each other. In his sworn defence, the Appellant concurred that, “I know BG we were working with the father.” Even on cross examination, he maintained that, “I knew the child through the father. The child knew me. The child knew me as Bundi.” 37. It is undoubtedly clear that the Appellant was the perpetrator, having been well known to the complainant, and later being seen with her by PW5, who informed PW4. Acting on that information, PW4 proceeded to the bar where he found the Appellant with the complainant. 38. The court finds that the prosecution proved beyond reasonable that the Appellant committed the offence. 39. The Appellant accuses the prosecution of failing to call Commander and Josiah Kiuma, who according to him, were vital witnesses to testify in court. In this court’s view, no particular number of witnesses shall, in the absence of any provisions of the law to the contrary, be required for proof of any fact. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2633/eng@2026-02-20 7

page 7 of 8

(See Section 143 of the Evidence Act). The prosecution paraded a total of 6 witnesses in support of its case, and this court finds that the evidence adduced therein was sufficient to sustain the Appellant’s conviction. 40. On sentence, section 8 (2) of the Sexual Offences Act. That section provides that, “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.” 41. The complainant was 6 years old and the appellant was sentenced to life imprisonment which was the punishment prescribed by section 8 (2) of the Sexual Offences Act. That sentence was thus lawful. 42. In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment), the Supreme Court has validated the minimum life sentence in Sexual Offences Act as follows: “ ...We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences...The Court of Appeal did not have jurisdiction to interfere with the sentence imposed by the trial court and affirmed by the first appellate court. Consequently, the life imprisonment sentence remained lawful and in line with section 8 of the Sexual Offences Act.” Orders 43. Accordingly, for the reasons set out above, the Court finds that the appeal is without merit and it is dismissed. Order accordingly. DATED AND DELIVERED THIS 20TH DAY OF FEBRUARY 2026. EDWARD M. MURIITHI JUDGE Appearances: Appellant in person. Mr. Mwangi for DPP. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2633/eng@2026-02-20 8

page 8 of 8