Hezron Matunda Mochere v Republic

asked the minor to accompany him to see where he lived. The Complainant acquiesced and the two walked to a rented two-roomed housed in Nyamari. 6. The complainant stated that after arriving at the Appellants house she told him that she needed to return home as she had exams the following Monday. The Appellant persuaded her to wait for a meal. He bought food, cooked and they ate. The Appellant then led the complainant to his bedroom where he defiled her on a mattress on the floor. 7. The following day the Appellant woke up prepared breakfast which they took together. He then went to work leaving the complainant locked inside the house. The complainant stated that she remained in the Appellants house for the next five days. That the Appellant would go to work each morning leaving her locked inside the house and would return in the evening. 8. On 1st March 2024 the complainant stated that one “Mama Betty’ knocked on the door and enquired from the child if she was a student. The complainant then showed this “Mama Betty” where the Appellant used to hide the keys and gave out her grandfather’s phone number ‘Mama Betty’ phoned police and also phoned the child’s guardian (grandfather). Police came and rescued the child and took her to Othaya Level 4 Hospital for examination. The Appellant was later arrested and charged. 9. PW2 MW is the complainant’s mother. She told the court that her daughter was aged sixteen (16) yeas and was a Form three student at [Particulars Withheld] Secondary School. PW2 told the court that whilst she lived in Kieni West the complainant used to reside with her grandfather at Gatugi. 10. PW2 told the court on 26th February 2024 her father called and informed her that the complainant had left his compound and had not returned. They continued to search for the child and also reported the matter to police. 11. Later an unknown lady contacted the family and told them that the complainant was being held in a house in Nyamari. Police went and rescued the child. She was then taken to hospital for a medical examination. 12. PW3 Thomas Mwangi is a clinical officer working at Othaya Sub-County Hospital. He told the court that he examined the child at the hospital. He produces the P3 and PRC forms relating to this examination. (Pexb 2 and Pexb 1) 13. PW4 Lydia Wanjiku Rutere told the court that she is a Pastor and is a resident of [Particulars Withheld] village in Othaya. PW4 states that on 1st March 2024 one ‘Njoroge’ who was her neighbour informed her that the Appellant who lived in the same area had married a school girl. 14. PW4 went to the Appellant’s house and found it locked. She knocked and the complainant opened. PW4 questioned the child who admitted that she was a secondary school student. PW4 demanded for the grand-father’s phone number. She called and alerted the child’s guardian about the child’s whereabouts. The grand-father then came with police and rescued the girl. The Appellant was also later arrested. 15. PW5 Corporal Stephen Mbugua Mwaura was one of the officers who went and recued the minor from [Particulars Withheld] village. The officer later went back to the scene and arrested the Appellant. 16. PW6 PC Hellen Muya of Gatugi police Post was the Investigating Officer. 17. At the close of the prosecution case the Appellant was found to have a case to answer and was placed on his defence. The Appellant gave a sworn defecne in which he denied having defiled the complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3070/eng@2026-03-06 2

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18. On 25th March 2025, the Hon. N. W. Wanja Resident Magistrate delivered her judgment in which she convicted the Appellant on the main charge of defilement. The Appellant was granted an opportunity to mitigate after which the trial court sentenced him to serve fifteen (15) years imprisonment. 19. Being aggrieved by both his conviction and sentence the Appellant filed this Memorandum of Appeal, which Appeal is premised upon the following grounds:- 20. “ 1. That, the learned trial magistrate erred both in law and fact when failing to consider that there was no sufficient reason or evidence to have committed the offence charged. 2. That, the learned trial magistrate erred in law and fact to find that the complainant had lied to the appellant she was above 18 years old and her identity card is at home. 3. That, the learned trial magistrate erred in law and facts by failing to appreciate that medical evidence and elements of the offence charged was not proven beyond reasonable doubt. 4. That, the learned trial magistrate erred in law and fact when he rejected my sworn evidence which was not challenged by the prosecution side without cogent reason. 5. That, the learned trial magistrate erred in law and fact by failing to find that the complainant in this case was not truthful witness, she escaped from school and their home hence her evidence was incredible and unreliable to find conviction. 6. That, since I cannot remember all what transpired during the hearing of this case, I kindly request this honourable court to supply me with my court proceeding.” The Appeal was canvassed by way of written submission. The Appellant filed the written submissions dated 23rd October 2025 whilst the ODPP opposed the Appeal through the written submissions which were not dated. Analysis and Determination 21. 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. 22. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3070/eng@2026-03-06 3

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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.” 23. 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 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 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.” 24. 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. 25. 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.” 26. The Appellant faced a charge of Defilement. In the case of Charles Wamukoya Karani -vs- Republic [2013] eKLR the Court set out 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.” 27. 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. 28. 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.” 29. 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…….” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3070/eng@2026-03-06 4

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30. Similarly in Edwin Nyambgo 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 provoked by documents, 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 victims age, it has to be credible and reliable.” [Own emphasis] 31. In this case the complainant herself told the court that she was born on 22nd June 2007 and was aged sixteen (16) years at this time of the incident. The complainant said she was a student in Form Three at [Particulars Withheld] Secondary School. 32. PW2 who was the complainant’s mother told the court that her child was born on 22nd June 2007. She produced in court a copy of the complainant’s birth certificate Serial No. 38xxx8 (Pexb 3). The birth certificate coupled with the evidence of the complainant and her mother provide reliable and concrete proof of the age of the complainant. Having been born in June 2007 the complainant was aged Sixteen (16) years in February 2024 when this incident occurred. I find that it has been conclusively proved that the complainant was a minor at the time of the incident. 33. The next element of the charge of defilement which requires proof is the fact of penetration. Section 2(1) of the Sexual Offences Act, 2003 defines penetration as follows:“ the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 34. The complainant told the court that the Appellant invited her to visit his house. She agreed to the request. Upon arrival at the house the Appellant cooked a meal which they ate together. He then detained the complainant in his house for five (5) days and defiled her severally. In her own words the complainant stated thus:“ ………………..and then the accused showed me his bedroom where he slept. He removed his trouser and removed my underwear and white trouser as well as white T-shirt. He then lay me on the floor where the mattress was and we had sex. He used his penis to penetrate my vagina. We had sex that night only once. At that time, I was telling him to stop and he was continuing……………………….” 35. The complainant here has given a clear and graphic narration of what happened to her. The complainant who was a teenager knew what the Sexual act entailed. She clearly stated that the Appellant penetrated her vagina with his penis. In my view the complainant was not engaged in telling fairy tales. She had nothing to gain by telling the courts that she had been defiled if no such incident had actually occurred. 36. PW3 was the clinical officer who examined the complainant at Othaya Hospital. He noted that the child was anxious and nervous at the time of her examination. PW3 noted old tears in the complainant’s hymen an indicator that penetration had indeed occurred. PW3 filled out the PRC form Pexb 1 and the P3 form Pexb 2. These documents confirm the testimony of PW3. 37. PW3 further noted that since the complainant had bathed and had changed her clothes before she came to the hospital, he was unable to make any observations on the state of her clothing or to take https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3070/eng@2026-03-06 5

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any samples. From the evidence availed in the trial I am satisfied that the fact of penetration was proved beyond reasonable doubt. 38. The final element requiring proof in a case of defilement is the identity of the perpetrator. The prosecution must adduce sufficient evidence to prove that it was the Appellant who defiled the complainant. Sexual offences often occur in secrecy. Ordinarily there would not be any eyewitness to the incident. 39. The complainant identified the Appellant as the man who defiled her. Although she stated that she had not known the Appellant prior, she identified the Appellant as the man who approached her at Othaya Stadium and invited her to visit his house. The complainant walked to [Particulars Withheld] village with the Appellant. She went on to share a meal with him. The complainant then spent a full five (5) days in the company only of the Appellant in his house. Given the above circumstances I find that the complainant had ample time and opportunity to see the Appellant. She was with him day in and day out for an extended period of time. I find there was no possibility of a mistaken identity. 40. PW4 was the woman who rescued the complainant. She told the court that she was informed by neighbours that the Appellant was living with a school-girl. PW4 went to the Appellant’s house. PW4 knew the Appellant well as a neighbour and she identified him as the man in whose house she found the child. 41. PW5 was the arresting officer. He told the court that he was led to the house where the complainant had been found by PW4. He confirms that he arrested the Appellant from that house. The Appellant does not deny that the house was his nor does he deny that he was arrested from that house. 42. In his defence the Appellant denied that he detained the Appellant in his house and he also denies having defiled the child. The Appellant admits that he did attend a football match at the Othaya Stadium on 25th February 2024 but states that it was his friend one ‘Enoch Rioba’ who knew the complainant and her friend and who spoke to them. The Appellant insists that it was this ‘Enock Rioba’ who left with the two girls, while he remained watching the match. 43. Not surprisingly the Appellant did not call his friend as a witness. Although the Appellant insisted that PW4 lied against him he admitted that there was no pre-existing grudge between himself and PW4 and that she had no reason to give false evidence against him. Under cross-examination the Appellant says “ Lydia Gichuki (PW4) testified and she was not known to me prior to offence I had not seen her before her testimony in court. She had no reason to lie to court. However everything she testified in court was lies. We had no personal differences. …….” [Own emphasis] 44. The defence of the Appellant amounted to a bare denial. I do agree with the trial court that there was a clear and positive identification of the Appellant both by the complainant and her rescuer PW4. The evidence of the two witnesses was consistent and both remained unshaken under cross-examination. The complainant and PW4 had no reason or motive to implicate the Appellant in this offence. 45. Based therefore on the foregoing I am satisfied that the conviction of the Appellant by the trial court was sound. I do confirm that conviction. 46. Following his conviction the Appellant was allowed an opportunity to mitigate. The trial court considered his mitigation and the pre-sentencing report and delivered the ruling on sentence on 17th June 2025. 47. The Sexual Offences Act provides for minimum mandatory sentences upon conviction. In the case of Republic -vs- Mwangi & Others [2021] eKLR the Supreme Court of Kenya upheld the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3070/eng@2026-03-06 6

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constititionality of the minimum mandatory sentences under this Act. Therefore the sentence imposed upon the Appellant was lawful. Section 5.8 (4) of the Sexual Offences Act provides “ (4) A person who commits the offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 48. I note that the trial court did take into account the period of time the appellant had spent in remand during his trial. The court did factor this into his sentence by directing that the sentence begin to run from the date of arrest being 1st March 2024. Therefore the fifteen (15) year sentence imposed upon the Appellant is confirmed. 49. Finally I find no merit in this appeal. The same is dismissed in its entirety. The conviction and sentence of the trial court are upheld and confirmed. DATED IN NYERI THIS 6TH DAY OF MARCH 2026. ………………………………… MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3070/eng@2026-03-06 7

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