Ngunu Kaloki Musomba v Republic

3. That the trial court erred in matters of law and facts by sentencing the appellant to 15 years imprisonment, a sentence which is harsh and excessive in light of mitigation’’. 4. The Appeal was canvassed by way of written submissions. The Appellant by his submissions contended that the trial court erred in law and fact by convicting him despite the prosecution failing to prove the case beyond reasonable doubt, as required under Section 107 of the Evidence Act. The Appellant argued that the ingredients of the offence of sexual assault were not proved beyond reasonable doubt, particularly the element of penetration and identification of the perpetrator. He cited the case of David Odanga Wanyama v Republic [2022] eKLR, for the proposition that in a case of sexual assault, the prosecution must prove the essential elements of a sexual offence, including penetration and positive identification of the perpetrator. 5. The appellant further argued that his right to a fair trial under Article 50 of the Constitution was violated because the trial court failed to properly guide him during the proceedings, especially since he was unrepresented. And complained that the trial court did not adequately ensure that he understood the proceedings or had access to the facilities necessary to prepare his defence. He placed reliance on Albanus Mwasia Mutua v Republic, Criminal Appeal No. 120 of 2004, where the Court of Appeal held that unexplained violation of constitutional rights may lead to an acquittal irrespective of the strength of the evidence. 6. Additionally, the Appellant challenged the credibility and reliability of the prosecution witnesses, particularly the identification of the perpetrator and pointed to what he termed as inconsistencies and contradictions in the testimonies of key witnesses and argued that the prosecution did not provide sufficient corroborative evidence in support of the offence. 7. Further reiterating that in a criminal case, the burden of proof rests on the prosecution and never shifts to the accused as held in Boniface Okero v Republic [2010] eKLR. He faulted the trial court for failing to give reasons for its finding that the victim despite her tender age was a truthful and believable witness, while founding the conviction on Section 124 of the Evidence Act. He described the quality of the testimony by the victim’s mother and other witnesses as incapable of lending corroboration as defined in Mutonyi Vs Republic (1982) KLR 203 to the minor’s testimony . 8. Moreover, he asserted that the medical evidence presented did not necessarily prove penetration or sexual assault by the Appellant and that medical findings or injuries alone do not automatically prove penetration in a sexual assault case; and that such evidence on its own did not exclude other likely causes of such injuries. In that regard citing P.K.W vs Republic (2012) eKLR and Peter Mwangi Muthunga v Republic, Criminal Appeal No. 154 of 2005. 9. He complained, citing Ouma vs Republic (1986) KLR 619 that the trial court did not give adequate attention to his defence especially regarding his alleged sexual relationship with the mother of the victim and the consequent instigation of his arrest by her husband. The defence evidence, he claims, provided a reasonable explanation of the events and raised doubt in the prosecution case. According to the Appellant, the trial court focused only on the prosecution evidence and ignored important aspects of the defence which raised reasonable doubt that ought to have been resolved in his favour. He therefore submitted that the prosecution evidence did not rise to the threshold required to sustain a conviction. 10. Finally, the Appellant complained that the sentence meted out was harsh and excessive and failed to consider his mitigation, including his personal circumstances. The Appellant therefore urged this court to allow the appeal, set aside the conviction and sentence, or alternatively reduce the sentence imposed by the trial court. He placed reliance on Mohamed Sango & Another v Republic, Criminal Appeal https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3948/eng@2026-03-19 2

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No. 1 of 2013, and Fatuma Hassan Salo v Republic [2016]eKLR, for the proposition that the court’s discretion in sentencing must be exercised judiciously, considering mitigating factors. He asserts that the provision creating the offence of sexual assault gives discretion to the court to impose a sentence of ten years imprisonment and above, taking into account mitigating factors. 11. The Respondent’s submissions are dated on 26th June, 2025. In opposing the appeal, the Respondent maintained that the conviction and sentence in this case were proper and lawful. The Respondent restated that the Appellant was convicted of the offence of Sexual assault contrary to Section 5(1) (a)(i) as read with Section 5 (2) of the Sexual Offences Act and sentenced to 15 years imprisonment. Following a full trial where the prosecution presented credible and sufficient evidence in proving the charge beyond reasonable doubt. Hence the conviction was proper and should not be disturbed. 12. Taking the view that the Appellant’s main complaint related to the severity of the sentence, the Respondent submitted that an offence contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act attracts a sentence of not less than ten years imprisonment and may be enhanced to life imprisonment. Thus, in the Respondent’s view, the sentence of 15 years imprisonment was lawful, albeit lenient considering the gravity of the offence and the harm caused to the victim, including significant physical and psychological trauma. The Respondent asserted that such offences require deterrent punishments to protect potential victims and society. 13. That said, the Respondent conceded that the sentence should be computed from the date of the Appellant’s arrest in accordance with Section 333(2) of the Criminal Procedure Code, which requires courts to take into account the time an accused person spent in custody before sentencing. In conclusion, the Respondent urged the court to dismiss the appeal in its entirety, subject to the application of Section 333(2) of the Criminal Procedure Act regarding the period the Appellant spent in custody during the trial. Analysis and Determination 14. The court has considered the record of the trial alongside the submissions on this appeal. The duty of the court is to re-evaluate and re-consider the evidence adduced before the trial court with a view to arriving at its own independent conclusions. This being a first appeal the court is guided by the principles in Okeno -vs- 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 Vs. Sunday Post (1958) EA. 424.” 15. The key issues for consideration are whether the prosecution proved the case against the Appellant to the required standard, and whether the sentence of 15 years imprisonment was harsh and excessive. It is trite that in criminal cases, the standard of proof is beyond reasonable doubt and that the burden of proof rests on the prosecution, and never shifts. 16. As Lord Denning MR eloquently stated in Miller V. Ministry of Pensions (1947) 2 All ER, 372: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3948/eng@2026-03-19 3

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a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.” 17. The offence of sexual assault is created by Section 5 of the Sexual Offences Act which states that: “ (1) any person who unlawfully: a. b. 18. penetrates the genital organs of another person with— i. any part of the body of another or that person; or ii. an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes; manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.” The Appellant was charged under subsection (a) (i) above. To establish the offence, the prosecution was required to prove that there was penetration into the genital organs of the victim by any part of the body of the Appellant. The ingredients of the offence being penetration and identification of the perpetrator. The Court of Appeal in the case of John Irungu v Republic, [2016] eKLR pronounced itself as follows regarding the offence of sexual assault: “ Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.” 19. The prosecution called four witnesses. Following a voire dire examination, the minor complainant M.S.W testified as PW1, giving unsworn evidence as directed by the court. Her evidence was that she was five years old, and residing at Kitengela with her parents and that on 23.4. 2017 she was in her home with two other friends, also minors. Presently she left the house, on the first floor of the building with one N. a minor, to go and play near the shop which was apparently on the ground floor where Kaloki, identified as the Appellant, worked and was at the time present at the shop; that he gave treats to the other children and a phone to the boy N., ostensibly to play with; and that the Appellant then thrust his hand inside her trousers and inserted his fingers in her vagina, causing her pain . 20. PW1 thereafter returned home and had a meal before going back to the shop in the company of N. and S. both whom the Appellant gave treats. Later she went back home, and when her mother M.N (PW2) wanted to bathe her, she asked to urinate first and experienced pain. She reported to her mother what the Appellant had done to her hence the pain experienced while urinating. She stated that the incident with the Appellant was not the first, but she had not earlier reported fearing that if her father learned of the matter, he would punish her. 21. PW2 testified that upon learning of the assault from PW1 she examined the minor’s vagina, and noted redness and bruising. That PW1 narrated to her how the Appellant had inserted his finger in “susu” (a child’s euphemism for vagina) and had also previously done that to her, but that she had never felt pain. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3948/eng@2026-03-19 4

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PW2 then called her husband, reported to police and took the minor for examination at the Nairobi Women Hospital where the minor was admitted from 23.4. 2017 to 28.4.2017. 22. At the hospital, PW1 was examined by Ruth Lengete (PW4) a clinical officer who testified that upon examining the minor’s genitals, she noted that the hymen was partially torn while the labia was bruised. Her findings were recorded the P3 form (PExh. 2), the PRC form (P.Exh 1) which she tendered as evidence. 23. From the evidence of the witnesses above, there is credible proof of penetration. What the Appellant appeared to contest at the trial and on this appeal is the manner thereof and person by whom the penetration occurred, hence asserting that the evidence is inconclusive of penetration as alleged by PW1. Which brings us to the next ingredient, namely, identification of the perpetrator. 24. There was no dispute that the Appellant was known to the family of the minor complainant prior to the material date as he worked at a shop housed on the ground floor of the same building where family of PW1 resided on the first floor. The minor identified him by the name “Kaloki” and physically identified him in court during the trial. The incident itself was not the first and occurred during daytime, hence the circumstances favoured positive recognition. 25. The assertion made by the Appellant on this appeal that the circumstances of his arrest put to doubt his identification is of no moment. Not only did the minor PW1 identify him to her mother by name while reporting the assault, both witnesses identified him in court physically and by name and there was never any dispute that the trio were neighbours who knew one another well. Indeed, this was admittedly a case of recognition which is more reliable than identification of a stranger. 26. The Court of Appeal in the case of Peter Musau Mwanzia V. The Republic 2008 eKLR expressed itself as follows: “ We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing that the suspect at the time of the offence can recall very well having seen him earlier on before the incident” 27. The trial court evidently considered the evidence of PW1 and especially the fact that she knew the Appellant well, and invoked the provisions of Section 124 of the Evidence Act as cited by the High Court at Nyeri in Jeremiah Mwangi Ngatia V Republic HCCRA No. 110 of 2012. And while not expressly stating the reasons for believing her, the trial court evidently accepted her evidence, as corroborated by the other witnesses who testified. 28. The Appellant’s defence which he complains was disregarded by the trial court was totally displaced by this evidence. The claim in his defence that the Appellant was involved in a cash-for-sex relationship with PW2 which had run into trouble was not put to her during cross-examination and was sprung up much later in the testimony of the Appellant. It appears an afterthought, therefore. 29. As for PW1, she was not involved in the alleged adult relationship and was too young to be roped into a conspiracy against the Appellant as indirectly suggested by his defence. Ditto for PW4, a professional who did not even know the identity of the alleged perpetrator of the injuries she observed. Absent good reason, an appellate court must defer to the conclusions of the trial court which saw and heard https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3948/eng@2026-03-19 5

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the witnesses testify. In addition, upon its own review of the evidence, this court is satisfied that the evidence mounted against the Appellant proved the ingredients of the offence beyond reasonable doubt and that his defence was properly dismissed. 30. In addition, his claims to the effect that the trial court failed to adhere to the requirements of a fair trial by failing to guide him during proceedings and to facilitate his defence do not stand. The trial record clearly shows that upon arraignment, the Appellant denied the charges read to him and participated by questioning witnesses during the trial, and upon being placed on his defence gave a sworn statement, which clearly showed he understood the nature of the charges facing him, and called a witness. The appeal against conviction is therefore without merit. 31. As regards the sentence, the Appellant urged this court to find that it was harsh and excessive and prayed for the same to be set aside or reduced. Section 5(2) of the Sexual Offences Act provides that a person who commits an offence of sexual assault is liable to imprisonment for a minimum term of ten (10) years imprisonment which may be enhanced to life imprisonment. 32. The Court of Appeal decision in Bernard Kimani Gacheru v. Republic [2002] eKLR is pertinent here. The Court expressed itself as follows:“ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentences must depend on the facts of each case. On appeal, the appellate court will not easily interfere with a sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any of the matters already stated is shown to exist.” 33. The trial court, in exercise of its discretion, and having considered his mitigation, sentenced the Appellant to 15 years imprisonment. Given the possible maximum sentence, this sentence is neither excessive nor harsh in the circumstances of the case and especially the very tender age of the minor victim who suffered psychological and physical trauma arising from the Appellant’s sexual assault. If anything, the sentence was in the opinion of the court, lenient. In the result, the appeal must fail and is dismissed in its entirety. 34. However, noting from the lower court record that since his arrest on 27.4.2017, the Appellant remained in custody until his sentence on 14.11.2027, the court will invoke the provisions of Section 333(2) of the Criminal Procedure Act in his favour. Accordingly, the court hereby directs that the prison term of 15 (fifteen) years will be reckoned from 27.04.2017, the date when the Appellant was arrested. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 19TH DAY OF MARCH 2026. C.MEOLI JUDGE In the presence of: For the Respondent: Ms. Kivali Appellant: Present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3948/eng@2026-03-19 6

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C/A: Lepatei https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3948/eng@2026-03-19 7

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