Mutuku Munyalo v Republic

4. 2. That the learned trial magistrate erred in both law and facts by failing to consider that the sentences imposed to the appellant was manifestly harsh disportionate and excessive in all the circumstances. 3. That the learned trial magistrate erred in law and facts by failing to adequately consider the appellant defence. 4. That the learned magistrate erred in law and in fact by basing the conviction on evidence that was below the standard of proof. 5. That the honourable trial magistrate erred in law and fact by believing the evidence of PW1 which was unbelievable, unsatisfactory full of inconsistence and contradictions. 6. That the learned trial magistrate erred in law and in fact in finding that the prosecution has proved its case beyond reasonable doubt. 7. That the learned trial magistrate erred in law and in fact by disregarding the appellant evidence and relying heavily on medical evidence prepared relating to the missing of hymen and penetrating to secure conviction of appellant. 8. That the learned trial magistrate failed in law and fact by disregarding the appellant submission and arguments therein. 9. That the learned trial magistrate erred in law and in fact by failing to appreciate that the medical evidence tendered before court did not create a nexus between him and the alleged ofience. 10. That the learned trial magistrate erred in law and in fact by relying on insufficient evidence. 11. That the learned trial magistrate erred in law and in fact by dismissing the appellant plausible defence which was not rebutted without ofiering any cogent reasons thereof. 12. That the trial court failed to consider that the appellant fundamental constitutional rights were violated and thus no ample time was given to defend himself. 13. That the trial learned magistrate erred in law and fact by holding that the prosecution had proved its case against the appellant to the standard required in-law whereas the evidence. 14. That the honourabe trial magistrate erred in law and fact by failing to consider that the investigation was shoddy tainted by biasness, omissions and failure to conduct DNA examination and test of the appellant specimen. 15. That the honourable trial magistrate failed in law and fact when she failed to consider the fact that the subject was based on fabrication and afterthought in the circumstances of the evidence tendered on record. 16. The learned trial magistrate erred in law and fact when she considered extraneous matters not in evidence to sentence the appellant. He urges the court to allow the appeal set aside the conviction and sentence be set aside varied and or quashed. The respondent opposed the appeal and prayed that it be dismissed. The Prosecution’s Case 5. PW1 RS is the complainant. She testified that on 12/9/2015 she was carried on a motor bike by someone who took her to the bushes. The person told her to sleep. He then removed his pants and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4392/eng@2026-01-22 2

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defiled her. He then told he to climb on the motor cycle and she went home. She told the court that she did not want anything to do with the appellant. She told the court that she had met the appellant before and that his name is Mukulu who used to operate a motor bike at Nzevoni. She told the court that the appellant used to carry her on his motor bike. PW1 reported what happened to her mother and she was escorted to hospital. 6. PW2 TNM, a teacher at [Particulars Withheld] School for the mentally challenged was informed by a teacher that the complainant had gone to school looking dull, in pain and refused to say what had happened. The teacher told her to talk to her. 7. PW2 called PW1 and asked if she was unwell. She refused to talk. She eventually told her that a motor bike rider did ‘tabia mbaya’ to her. She called her matron and they examined. They saw that her genitalia was swollen and had a foul smell. They reported the matter to the Chief who advised them to report to the police. She also called her parents. 8. PW2 further told the court hat the complainant has a behavioral condition, has mood swings and at times speech problem. She is also a slow learner. 9. PW3 RS is the complainant’s mother. She testified that the complainant attends [Particulars Withheld] Unit as she is a slow learner. On 12/9/2018 at 3.00pm the complainant went to where she was working and complained of stomach and head ache. She bought her medicine and she went and slept. The next day at 1.00pm she was called by the teacher who informed her that the complainant appeared to be sexually active. 10. She went to the dorm and examined her. She saw blood and she was swollen. She appeared to have been curt. She asked her what happened. The complainant disclosed to her that a boda boda rider carried her on a motor bike, took her to the bushes and defiled her. They reported to the Chief and to the police. She then took her to Kitui Referral Hospital where she was treated. She then went with the complainant to where motor bike riders park. The complainant pointed out the appellant as the person who defiled her. She reported to the police and the appellant was arrested. 11. PW4 CSM the complainant’s father. He gave similar evidence to that adduced by PW3. Additionally, he told the court that the complainant was born the year 2002. 12. PW5 Police Constable Nelly Omuse attached to Nzambani Police Station testified that on 13/9/2018 at 1430hrs while at the report office she received a report from the complainant who was accompanied by her parents who reported that she had been defiled by the appellant. She booked the report and was taken to Kitui Hospital for examination. She issued her P3 form which was filled by the doctor. 13. An age assessment of the complainant was also done and the doctor concluded that she is sixteen (16) years old. The complainant was mentally disabled. The PW5 arrested the appellant as he was identified by the complainant as the person who defiled her. 14. PW6 Robinson Katena Musyoka County Clinical Officer in charge of Medical Legal produced the P3 on behalf of Thomas Kituku who filled and had left employment after retiring. He was familiar with his handwriting. The patient alleged to have been waylaid on her way from school and defiled. On examination there was no bloodstains on her clothes. The Labia Majora and Minora were intact. The hymen was broken. There was no discharge of spermatozoa seen. The hymen was broken. 15. High vaginal swab revealed bacteria and pus cells. Red blood cells were seen. The age assessment revealed that she was sixteen (16) years old. He also produced the PRC form. The P3 form was produced as exhibit 1, PRC form, exhibit 2, age assessment exhibit 3 and Lab requests were produced as exhibit 4. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4392/eng@2026-01-22 3

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16. PW7 Justina Pereta a holder of Masters Degree in Management and Administration and Diploma in special needs, Kenya Institute of Special Education. Masters from Mount Kenya University. She works as an Officer of Special Needs Education Office Zambani Sub-county. 17. She testified that she handles assessment and placement in the ministry of Education. That she assesses children with special needs and place them in learning institutions and that they take them to hospital. She testified that she complied to a report for RKS the complainant herein after she was taken to her office. She noticed that she has a speech disorder and a mental challenge. She placed her at [Particulars Withheld] Unit to learn from the classroom but in the disabled unit. That she had a mild mental challenge. The report was produced as exhibit 5. Defence Case 18. The appellant testified that he had never defiled a child and he was framed. That he has a wife. DW2 was the appellant’s wife. She testified that the appellant was framed by people who are after money. DW3 MM he stated that he followed the appellant after he was arrested. He ofiered to settle the hospital bill. He then said he could not be involved as the things looked false. 19. The appeal was canvassed by way of written submissions. I have considered the submissions. The appellant identified two issues for determination. That is: i. Whether the ofience of defilement was proven to the required standards. ii. Whether the conviction was fair and just. Analysis and Determination 20. This is a first appeal and this court has a duty to analyze the evidence adduced before the trial court, evaluate it and come up with its own independent decision. The court has to leave room for he fact that it did not have an opportunity to see and hear the witnesses when they testified and leave room for that. This was stated by the court of appeal in the leading authority in Okeno -vs- Republic (1972) E.A 32. A first appellate court has jurisdiction to deal with issues of fact and law. Section 347(2) of the Criminal Procedure Code provides that an appeal to the High Court from the sub-ordinate is on both issues of fact and law. 21. I will proceed to analyze the appeal. Whether the charge was proved to the required standards. The appellant was convicted under Section 8(1) & (4) of the Sexual Offences Act which provides as follows: “ A person who commits an act that causes penetration with a child is guilty of an ofience termed defilement. A person who commits an ofience 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.” 22. It is not well settled by the authorities of this court and the court of Appeal that the three main ingredients of defilement which should be proved by the prosecution beyond any reasonable doubts are: 1. Age of the complainant 2. Penetration https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4392/eng@2026-01-22 4

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3. Positive identification of the perpetrator Age 23. The age of the victim is an important element in cases of defilement as it determines the provision under which the suspect is to be charged and the sentence to be meted out. In the case of Karingu Kasomo -vs- Republic Criminal Appeal No. 504/2010 the court of Appeal stated that – “ Age of the victim of a Sexual Assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 24. The age of the victim should be proved beyond any reasonable doubts. It is the contention by the defence that the age of the victim was not proved as the complainant did not know her age and he birth certificate was not produced. That the age assessment report is not reliable as the court was no told who prepared it. 25. Age may be proved by production of a birth certificate, baptism and immunization card or other material evidence including a medical report. What the state relies on to prove the age must be reliable and credible. In the case of Francis Omuroni -vs- Uganda, Court of Appeal, /criminal Appeal No. 2/2000 it was held that – “ In defilement case 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 other evidence. A part from medical evidence age may be proved by birth certificate, the victim’s parents or guardian, observation and common sense…” 26. In this case, the age assessment report was produced as exhibit 3. She was examined on 21/09/2018 and the doctor stated that she was sixteen-year-old. The complainant’s father testified that she was born in 2002. The learned magistrate relied on the age assessment report. 27. I find that the testimony of the complainant and the age assessment report as well as the testimonies of the parents was credible and reliable evidence to prove the age of the victim. The age of the victim was proved to the required standards. She was sixteen years old at the time the ofience was committed. The age assessment report was done by medical superintendent Kitui District Hospital and was produced by the Clinical Officer Kitui Hospital whose evidence was not challenged. Penetration 28. The term penetration is defined under Section 2 of the Sexual Offences Act as follows: ‘Penetration’ “means the partial or complete insertion of the genital organ of a person into the genital organ of another person” Thus, penetration may be partial or complete and prove of either of them constitutes prove of penetration. It is well settled in law and in various authorities of these court and the Court of Appeal that penetration is proved by the victim of the ofience and corroborated by medical evidence. The trial court is supposed to observe the demeanor of the witness and determine whether to believe the witness. The trial court had the benefit of seeing the witness and this court has to leave room for that fact. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4392/eng@2026-01-22 5

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29. The trial magistrate found that the complainant categorically stated that the appellant removed her pant and defiled her. That on examination in the hospital the hymen was broken and there were blood cells seen and the doctor’s prognosis was that the complainant had been defiled. The testimony of the complainant was corroborated by medical evidence. I find that there was sufficient evidence to prof penetration as testified by PW5 Robinson Katana who produced the P3 form. 30. In the case cited by the respondent in E.E -vs- Republic which considered the issue of proof of penetration, the court on the Supreme Court of Uganda in Bassita Hussein -vs- Uganda, where the court held that: “ The act of Sexual Intercourse or penetration may proved by direct or circumstantial evidence usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 31. The P3 form produced as exhibit 1 as was produced by PW5 Robinson Katena on behalf of Thomas Kituku who had since retired. It is noted that part 1 of the P3 form had not been proved by a Police Officer. However, this does not make the P3 form inadmissible in court. It is for a court to consider whether the missing information is critical to the case and other evidence missing information is critical to the case and other evidence can corroborate the missing details. He court can then consider whether the missing information is essential to the case. 32. In this case PW5 testified and stated that from the examination of the victim the hymen was broken and no spermatozoa was found. The trial court was able to understand the nature of the injuries through exhibit 1 as that was the most vital information that it needed in making its decision. It is important to note hat a P3 form is used as evidence in Criminal and Sexual Ofiences Cases to support allegations of a victim that injuries were sustained during the commission of the alleged crime. 33. The medical evidence in the P3 form is used to confirm or otherwise the allegation of the complainant that there was penetration that occurred during the commission of the ofience. The broken hymen is suggestive of penetrative interaction during the commission of the ofience. I find that the ingredient of penetration was sufficiently proved by the victim’s testimony and that of the medical officer. Identification of the Perpetrator 34. Positive identification of the perpetrator is a key ingredient of the charge of defilement. The law is rite that a person’s guilt in criminal trials must be proved beyond any reasonable doubt. This is also hinged on the right of an accused person to be presumed innocent until proven guilty. Article 50(2)(a) of the Constitution provides that: “ Every accused person has the right to a fair trial which includes the right – a. 35. To be presumed innocent until the contrary is proved.” The court of Appeal in the case of Letting -vs- Republic Cr Appeal NO. 35/2018 (2021) KECA 444 (KLR) 9 July 2019 Judgment, stated that where the appellant was identified by the complainant as the person who defiled her and the evidence is corroborated on material aspects the identification of the appellant as perpetrator of the crime was well established. The complainant (PW1) while giving evidence identified the appellant as the one who defiled her. She knew her by name Mukulu. PW3 testified that he went with the appellant to where the motor bike riders were and PW1 pointed the appellant PW1 was a sixteen-year-old girl. She could not have failed to know the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4392/eng@2026-01-22 6

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36. The ofience was committed in broad day light and she could not have failed to recognize a person who she knew very well. She testified the appellant was a person who was well know to her as she usually sees him at Nzewani and he is a boda boda rider. PW2 testified that the complainant was a boda boda rider. I find that the prosecution tendered evidence which proved that the appellant was positively identified as the perpetrator. 37. The appellant has submitted that his defence was not considered. It is trite law that an accused person bears no burden to prove his innocence. The burden is on the prosecution to prove the charge beyond any reasonable. That burden never leave the prosecution’s backyard. See the case of Woolmington vs- DPP. 38. The record shows that the learned magistrate considered the defence and rejected it. She gave plausible reasons for rejecting the defence. Under Section 8(4) of the Sexual Offences Act (supra) the sentence that is provides for is a minimum of fifteen years. The learned magistrate imposed the sentence that was the bare minimum. The sentence was lawful and not harsh. The learned magistrate exercised her discretion fairly in view of the nature of the ofience and the public interest. 39. I find that the prosecution adduced sufficient evidence to proof the charge beyond any reasonable doubts. Conclusion The appeal lacks merits and is dismissed. DATED, SIGNED AND DELIVERED AT KITUI THIS 22ND DAY OF JANUARY, 2026. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4392/eng@2026-01-22 7

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