Peter Nzomo Mutuku v Republic

4. The appellant pleaded not guilty to all the charges and to prove its case, the prosecution called 4 witnesses. C. Prosecution case 5. PW1, EMM, the complainant testified stated that on 11/2/2024 at around 8a.m, while on her way to church in Kikambuani, she met Nzomo whom she knew as her neighbour’s employee. After attending church, she went to Nzomo’s homestead where he played music and asked her to dance. She stated that after dancing, Nzomo called her to sit on the bed, removed her clothes, and sexually assaulted her by inserting his penis (“kisive” in Kamba) into her genitalia. 6. Afterwards, Nzomo went to milk a cow while she returned home. Upon arrival, her mother questioned her whereabouts, and when she did not respond, her mother assaulted her. Later, she went back to Nzomo’s house, slept in his bed, but testified that he did not assault her again. Nzomo then took her to her aunt Mary, who asked about her whereabouts, but she did not disclose the incident. They later went to Mama Kivindya, after which she was dressed and went to school. 7. At school, her teacher noticed something was wrong and asked her what had happened. PW1 disclosed the incident to the teacher, who then involved her father. Together, they went to Kikambuani Police Station, where they found her mother. She was taken to hospital for examination, after which she recorded her statement at the police station. In court, PW1 identified Nzomo and stated that she had seen him before the court date and that he had defiled her previously. 8. During cross-examination, PW1 testified that she first saw the accused along the road while going to church. She stated that she is 12 years old and that her birth certificate is kept at home. She explained that no one saw her going to the accused’s house during the day or at night because the road was deserted. She added that she could not tell her mother about the incident since her mother would have assaulted her, and she did not scream because she feared the accused would assault her again. She further testified that the accused instructed her not to inform her mother of her whereabouts. PW1 emphasized that she is a schoolgirl, holds no grudge against the accused, and was not framing him. 9. PW2, RMM, testified that the complainant, is her daughter. On 11th February 2024, PW1 left home at about 8:00 a.m. to attend church but did not return until around 7:00 p.m. PW2, anxious about her prolonged absence, assaulted her with a stick upon her return. PW1 then ran away, and PW2, together with family members, searched for her throughout the night without success. The following morning at about 6:00 a.m., PW2 found PW1 outside the home. When asked, PW1 claimed she had slept in a maize plantation, but PW2 doubted this explanation. PW2 took her to the village elder, who advised that she be taken to school. At school, they met the deputy head teacher, and PW2 left for her farm. 10. Later, she was summoned to Kikambuani Police Post, where the head teacher informed her that PW1 had been defiled. PW2 stated this was the first time she learned of the alleged defilement. The matter was reported to police, and PW1 was referred to Kangundo Hospital for medical examination. PW2 testified that she was informed PW2 had been sleeping with a man named Nzomo, whom she identified in court as the accused. She added that Nzomo was her neighbor and worked in a homestead PW1 used to visit. 11. Upon being cross-examined, PW2 confirmed that PW1 was a school-going child, though she did not have school records in court. She stated she had PW1’s birth certificate, which she had earlier given to a person called Madam Jane. PW2 testified that she usually talks to her children and that PW1 had never slept outside before this incident. She confirmed that PW1 disclosed the incident to her teacher, not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3905/eng@2026-03-19 2

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to her directly. PW2 added that when she assaulted PW1, the child did not reveal where she had been. She further stated that she had not personally seen the accused together with PW1. 12. Upon re-examination, PW2 reiterated that the complainant was twelve (12) years old and urged the court to rely on her birth certificate as proof of age. 13. PW3, Police Constable Jane Mwogeli, service number 23xxx, attached to Kangundo Police Station, Gender Desk, testified that on 12th February 2024 at about 2:00 p.m., the complainant was brought to the station by her mother and the head teacher of Mbusiani Primary School. They reported that a defilement case had earlier been lodged at Kikambuani Police Post. PW3 interviewed the complainant and escorted her to Kangundo Level 4 Hospital for medical examination. Afterward, statements were recorded. 14. The complainant narrated that on 11th February 2024, she met Nzomo (the accused), whom she knew as a neighbor’s employee. He asked her to visit his house after church. At his house, he played music, asked her to dance, then removed her inner clothing and had sexual intercourse with her. She stayed there until about 3:00 p.m., later went to a farm out of fear of returning home, and eventually went back to the accused’s house after being punished by her mother. She alleged that Nzomo allowed her to sleep on his bed, and at about 1:00 a.m. and again at 4:00 a.m., he had sexual intercourse with her, instructing her afterward to wash herself. The complainant stated she was found the next morning by her mother and brother, who questioned her, and she admitted she had slept at Nzomo’s house. 15. PW3 testified that the complainant further disclosed that these sexual acts were not the first occurrence, alleging they began when she was in Grade Five, during which Nzomo would give her cake and warn her not to tell anyone. PW3 confirmed that the P3 Form and Post Rape Care (PRC) Form were completed by a medical officer, and she produced the complainant’s birth certificate as an exhibit. She identified Nzomo in court and noted that he had previously been arrested in November 2023 in connection with the disappearance of the complainant’s sister, though the present case concerned PW1. 16. Upon cross-examination, PW3 admitted that she did not recover the clothes the complainant wore during the alleged defilement, nor did she visit the accused’s house. She stated that when the complainant was brought to the station and later to hospital, she was dressed in a school uniform, having already changed. No clothing was recovered or produced as exhibits. PW3 confirmed that she relied on the complainant’s account and did not recover any exhibits from the accused. She emphasized, however, that the complainant identified Nzomo as the perpetrator. 17. PW4, Dr. Dennis Otwal, a clinical officer at Kangundo Level 4 Hospital with seven years of practice (Registration No. 18xxx), testified that he attended to the complainant, EMM, aged twelve, on 12th February 2024. He stated that the complainant reported being defiled by a person known to her, identified as Nzomo, on several occasions. She had run away from home after being punished by her parents on 11th February, returned the following day, and was then taken to hospital. 18. On examination, PW4 found the external genitalia normal but noted that the hymen was torn long ago, with no bruises, discharge, or bleeding. Laboratory tests (VDRL, pregnancy, urinalysis, HIV, and high vaginal swab) showed no significant findings. He observed hyperpigmentation on the vaginal wall, which he considered evidence of repeated sexual intercourse. Based on the history and clinical findings, he concluded that the complainant had been defiled over time. He produced the P3 Form and Post Rape Care (PRC) Form as exhibits. 19. During cross-examination, PW4 admitted he did not know the perpetrator and relied solely on the complainant’s account. He confirmed that the complainant did not present the clothes worn https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3905/eng@2026-03-19 3

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during the alleged incident and emphasized that his role was limited to medical examination and documentation of findings. 20. After PW4’s testimony, the prosecution closed its case. The court ruled that a prima facie case had been established and placed the appellant on his defence. The appellant chose to give sworn evidence but called no witnesses. D. Defence case 21. DW1, the appellant, testified that he resides in Kathuani and works as a house worker. He stated that on 12th February 2024, he was arrested at 2:00 p.m. and taken to Kikambuani Police Post. He was initially told he would sign something and then return home, but instead, he was transferred to Kangundo Police Station, where he was confronted with allegations. He was informed that a girl named EMM had slept in his house, though he insisted he did not know her. 22. During cross-examination, the appellant stated that he is both a house worker and a farmer. He acknowledged knowing Mr. Mutuku, his employer, who had hired him for housework and farming duties. He denied knowing the complainant and rejected the claim that she was familiar with him. 23. After the close of the defence case, judgment was delivered, convicting the appellant on the first count of defilement. On sentencing the trial court considered all mitigating factors and sentenced him to life imprisonment. E. The Appeal 24. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks to have his conviction quashed and the sentence of life imprisonment set aside. The appellant relies on his submissions. As at the preparation of this judgment, the Respondent had not filed submissions. a) Appellant’s Submissions 25. The Appellant challenged both the conviction and the sentence, arguing that the prosecution failed to prove its case beyond reasonable doubt. He submitted that the essential ingredients of the offence of defilement under section 8 of the Sexual Offences Act namely proof of the complainant’s age, penetration, and positive identification of the perpetrator were not satisfactorily established. In particular, he argued that the complainant’s age was not proved through credible documentary credible evidence, and that the medical findings were inconclusive, since the hymen was found to have been torn long before the examination and that laboratory tests were negative, thereby failing to confirm recent penetration or link the alleged act to him. 26. The Appellant further contended that the prosecution’s case was marred by material contradictions and inconsistencies, particularly in the complainant’s account of events, on the material day, her movements, where she allegedly spent the night, and the timelines given. He highlighted contradictions between the complainant’s testimony and that of her mother, especially regarding whether the complainant slept in a maize plantation or at the Appellant’s house. He argued that these inconsistencies undermined the prosecution’s case and should have created reasonable doubt. 27. On credibility, the Appellant acknowledged section 124 of the Evidence Act allows a conviction based solely on a complainant’s testimony in sexual offence cases, but maintained the trial court was still required to ensure the testimony was truthful and reliable. He pointed to delayed disclosure, of the alleged defilement, the failure to immediately report the incident to her parents or close relatives, and the lack of corroboration for claims that defilement began when the complainant was in Grade Five, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3905/eng@2026-03-19 4

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noting that no prior reports, investigations, or corroborative evidence were produced to support such claims. 28. The Appellant also alleged bias and unfair treatment. He argued that undue reliance was placed on the complainant’s testimony despite its inconsistencies and the investigative gaps admitted by the prosecution witnesses, such as failure to visit the scene, collect clothing, or secure forensic evidence. He emphasized that he was unrepresented throughout the trial and that the court failed to sufficiently safeguard his right to a fair trial under Article 50 of the Constitution. 29. Additionally, he submitted that his defence was not adequately considered. His sworn testimony denying knowledge of the complainant and disputing the allegations was dismissed without proper evaluation or comparison against the weaknesses in the prosecution’s case. He argued that his defence, when weighed alongside the inconsistencies and lack of corroboration in the prosecution’s evidence, raised reasonable doubt. 30. Finally, the Appellant challenged the sentence of life imprisonment, contending that the trial court erred in treating it as mandatory without considering evolving jurisprudence on proportionality, judicial discretion, and individualized sentencing. He argued that the sentence was harsh and excessive given the evidentiary gaps, his mitigation, and his status as a first offender. He urged the Court to quash the conviction and set aside the sentence, or in the alternative, to impose a lesser custodial term consistent with fairness and proportionality. b) Appellant’s Replying Submissions 31. The Appellant filed its replying submissions allegedly in response to the respondent’s submissions. However, the court could not trace the respondent submissions both on the CTS and on the physical file. The appellant submits that since the Respondent conceded the appeal on sentence imposed by the trial court, he urges the court to impose the penalty provided under Section 8 (3) of the Sexual Offence Act. While making reference to Article 20 of the Constitution, the Appellant urges this court to assess whether the life imprisonment meets the objective of Section 8 (3) of the Sexual Offence Act which prescribes a minimum sentence of 20 years upon conviction. 32. Accordingly, the Appellant prays that the life imprisonment sentence be set aside and substituted with a sentence term of 20 years imprisonment. Analysis and Determination 33. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence presented before the trial court and arrive at its own independent conclusion. In doing so, however, the court must remain mindful that it did not see or hear the witnesses testify. This principle has been emphasized in the cases of Pandya v R [1957] EA 336; Ruwalla v R [1957] EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v Republic [2010] Eklr. 34. Having considered the record of appeal as well as the submissions filed, I discern the following issues for determination: a. Whether the offence of defilement was proved beyond reasonable doubt; b. Whether the sentence imposed was harsh a. Whether the offence of defilement was proved beyond reasonable doubt 1. Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3905/eng@2026-03-19 5

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defilement”. Section 8(3) further stipulates that 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. 2. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as: a. Proof of the age of the victim; b. Proof of penetration or indecent act; c. Identification of the perpetrator. 37. In the present case, PW1 testified that she was twelve (12) years old at the time of the alleged offence. Her mother, PW2, corroborated this evidence and stated that she had the complainant’s birth certificate, which she had handed over to PW3. PW3 produced the complainant’s birth certificate as an exhibit before the trial court. The birth certificate indicated that the complainant was born on 22nd August 2011. 38. The production of the birth certificate, coupled with PW2’s constitutes sufficient evidence to proof the complainants age. Notably, the appellant has not disputed this fact in his appeal before this Court. I am satisfied that the complainant’s age was proved by a birth certificate and hence proved beyond reasonable doubt. The finding by the trial court that proof of age was supported by the evidence on record and cannot be faulted. 39. On proof of penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another. 40. PW1 gave a detailed account of the events of 11th February 2024. She testified that after going to the appellant’s house, he removed her clothes, lay on top of her and inserted his “kisive” (penis) into her genitalia. She used age-appropriate language to describe the act. and as noted by the trial court physically demonstrated the part of the body involved. In her testimony the complainant stated “he did bad manners to me, he put his thing kisive (in Kamba). He put his penis here (points to the genitalia) I did that act I was lying facing up Nzomo was lying on top of me.” This evidence as explained by the complainant is clear and direct as regard the act of penetration. The trial court did not doubt her credibility or pointed to anything that brought to doubt the credibility of the witness. 41. PW1 evidence was supported by the medical evidence as adduced through PW4 who examined the complainant on 12th February 2024. His findings revealed that the hymen was torn and appeared to have been torn some time earlier. He noted no fresh injuries, bleeding or discharge but observed hyperpigmentation on the vaginal wall, which he explained was indicative of repeated sexual intercourse. Based on the history given and the physical findings, PW4 concluded that the complainant had been defiled over a period of time. 42. The appellant argued that the medical evidence did not confirm recent penetration on the material date and therefore could not support the charge. The law is settled that medical evidence is only corroborative and not mandatory. In Geoffrey Kionji vs Republic Cr. Appeal No 270 of 2010, the Court of Appeal held that; “ Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3905/eng@2026-03-19 6

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convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.” 43. Penetration may therefore be proved by the credible testimony of the complainant alone, however in this instance it was proved by the evidence of the complainant and collaborated by that of the Doctor(PW4). 44. I have also considered the inconsistencies highlighted by the appellant regarding whether further acts of penetration occurred during the night. While PW1 stated that nothing happened when she slept in the appellant’s house at night, PW3 testified that the complainant reported additional acts of penetration during the night. These inconsistencies relate to the sequence and number of sexual acts rather than the occurrence of penetration itself. 45. It is this court’s finding, that these discrepancies do not go to the root of the prosecution’s case. The core allegation concerned penetration on 11th February 2024 which PW1 consistently maintained occurred earlier that day. The trial court was correct to believe the complainant on this central issue and I find no material misdirection in its conclusion. 46. Upon re-evaluating the totality of the evidence, I am satisfied that penetration was proved beyond reasonable doubt. 47. On identification of the perpetrator, the appellant denied knowing the complainant and denied committing the offence. However, the evidence on record demonstrates that this was a case of recognition rather than identification of a stranger. PW1 testified that she knew the appellant prior to the incident stating that he was employed by a neighbour. PW2 confirmed that the appellant was known within the neighbourhood and worked in a homestead which the complainant used to visit. PW3 testified that the complainant identified the perpetrator by name as Nzomo, a person she already knew. 48. The alleged incident occurred during the daytime in the appellant’s house, following prolonged interaction between the complainant and the appellant. Recognition in such circumstances is generally considered more reliable than identification of a stranger as stated in Anjononi & Others v Republic [1980] KLR 59. 49. The appellant himself admitted during cross-examination that he worked for Mr. Mutuku, whom PW2 identified as a neighbour. This admission placed him within the same locality described by the prosecution witnesses and further corroborated the complainant’s testimony that the appellant was a person known to her. 50. I have considered the appellant’s complaint regarding investigative gaps including failure to recover clothing, visit the scene or collect forensic evidence. While such shortcomings are undesirable, they do not automatically render the prosecution case unsafe where there is credible evidence of recognition. 51. The trial court expressly stated that it believed the complainant and found no evidence of malice or fabrication. Having independently re-evaluated the record, I find no basis to interfere with that finding. The appellant’s defence amounted to a bare denial, which, when weighed against the consistent evidence of recognition by PW1, PW2, and PW3 did not raise any reasonable doubt. 52. I am therefore satisfied that the appellant was positively recognized as the perpetrator of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3905/eng@2026-03-19 7

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53. Flowing from the foregoing I find that the prosecution proved all the ingredients of defilement. I find no reason to disturb the finding of the trial court. c. Whether the sentence was harsh 54. The Appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The evidence established that the complainant was aged 12 years old at the time of the offence. Section 8(3) of the Sexual Offences Act stipulates that a person who commits defilement with a child aged between twelve and fifteen years is liable upon conviction, to imprisonment for a term of not less than twenty years. This provision therefore sets a statutory minimum sentence. 55. The record shows that upon conviction, the trial court sentenced the Appellant to life imprisonment, stating that it had considered the law which, in its view, provided a minimum sentence of life imprisonment. However, this was a misdirection. The trial court appears to have treated life imprisonment as the mandatory minimum sentence under section 8(1) as read together with section 8(3) of the Sexual Offences Act, whereas the law clearly prescribes a minimum of twenty years, not life imprisonment. 56. The sentence of life imprisonment was imposed as though it were the automatic consequence of conviction for defilement yet Section 8(3) of the Sexual Offences Act expressly provides for a minimum sentence of 20years when the complainant is between the ages of 12 to 16years of age. In this case, the complainant was 12 years old. If the trial court intended to impose the minimum sentence, it ought to have articulated why a sentence of life imprisonment was justified instead of a determinate sentence within the statutory range. No such reasoning was provided. 57. In the circumstances, this Court finds that the sentence of life imprisonment was harsh and excessive. Guided by section 8(3) of the Sexual Offences Act, and in exercise of judicial discretion, the sentence of life imprisonment is hereby set aside and substituted with a term of twenty years’ imprisonment. The sentence shall run from 13th February 2024. 58. Accordingly, the appeal succeeds to that extent. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 19TH DAY OF MARCH 2026. RHODA RUTTO JUDGE In the presence of; ……………………………………………Appellant ………………………………………….Respondent Selina Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3905/eng@2026-03-19 8

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