Alex Njiraini Mutugi v Republic

b. The learned trial magistrate again erred in law and fact in failing to appreciate that the critical elements in defilement were not proved to the required standards in law occasioning a serious miscarriage of justice. c. The learned trial magistrate further erred in law and fact in failing to consider the plausible Appellant’s statement in defence which was not contested and or unproved by the prosecution hence still stands clearly demonstrating that the instant matter was a framed up one to curtail my success for envious reasons. d. The learned trial magistrate further erred in law and fact in failing to consider that the right of an accused person as stipulated under Article 49 (1) (f) (i) of the constitution of Kenya 2010 was violated. e. The court considers the provisions of section 333 (2) of the Criminal Procedure Code to be factored in his sentence. 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 R.W.K testified that, “I am aged 14 years old. I was born on 9/08/2008. I know the accused who is a friend. Esther Wangeci is my mother. I am a pupil in class 7. On 19/04/2022 at about 2.00 pm accused made a call to me. I had a phone which my mother had bought for me. Accused asked me whether I was free and I said yes. I was alone at home. I went to accused’s home. I found accused alone. Accused left me in his house and while there my mother made a call to me. I then went home. We did not engage in sex on 19/04/2022 but we had sex in 2022 on a date and month I cannot remember. I first met accused in March 2022 when accused had made a call to me and called me to his house. The time accused made a call to me in April 2022 a date I cannot remember. In April 2022 I had sex with accused in his bed room. I saw my mother pass by and I rushed home. I did not know whether my mother saw me. I was later taken to the hospital where I was examined and treated. I recorded my statement with the police. I first met accused on 4/03/2022 but we had no sex. I met accused for the second time on 19/04/2022. My mother took away the phone after the 2nd incident. Accused was my friend. Accused forced me into sex. He removed my clothes and inserted his private organ into my private part. Accused is my neighbour. We had exchanged our telephone numbers before I visited accused house. I told accused that I was a pupil.” 6. On cross examination, she stated that, “I know you. It is not true that you reside at Nyeri. I cannot remember the clothes you wore when I met you. I met you near our home. I knew you as our neighbour. We exchanged our telephone numbers. I knew you for months. I do not know the work you do. It was a Saturday. You were alone. There was no grudge between my parents and your parents prior to this case. I cannot remember your telephone number. No one saw me come out of your house. It was at 2.00 p.m. You left me in your house after telling me that you had been sent. I do not know who had sent you. My mother made a call to me and I left the house. I do not know where you reside as at now. I know you as Alex Njiraine. I do not know your sister.” 7. In re-examination, she stated that, “The incident was on 19/04/2022 but I cannot remember the day of the week.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4466/eng@2026-02-20 2

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8. PW2 EWK, testified that, “PW1 is my last-born daughter. She is in class 7. She was born on 9/08/2008. I have the birth certificate. Accused is a neighbour. There is only 1 land in between me and accused’s home. Accused used to live with his mother out he has a separate house. On 4/03/2022 a small girl came and called PW1 to go to church. The 2 left to the church at around 9.00 am. At about 3.00 I made a call to PW1 using my phone which she had carried. PW1 received my call and said that she was in the church. I made a call to Sunday school teacher who told me that there were no confirmation classes that day. I called PW1 again and gave her 4 minutes to be at home on the way I met PW1. I took a stick and beat her asking her where she was. She took me to accused’s house but we did not find accused on the way back we met accused who denied that PW1 was at his place. I hit accused using the stick which I had carried. Accused said that I was framing him up. On 19/04/2022 I told PW1 that I had gone “Kwa V” to collect some goods. At about 3.00 pm. I sent PW1 to the market. I also left to “Kwa V” where I called the goods and went back home but I did not meet PW1 at home. I went to accused’s place. I saw PW1 move from accused’s house and run away but accused, who was in the road, denied. I went home and reports to the police at Sagana. I was referred to the hospital. We went to Sagana Sub-County Hospital the same date on 19/04/2022. When police went to arrest accused he run away into the rice plantations and later disappeared. We were issued with P3 form.” 9. On cross examination, she stated that, “A neighbour’s child saw PW1 move out of your house. I also saw PW1 move out of your house. It was at about 5.00 pm. I met you on the round in company of 2 young men. On 19/04/2022 I saw PW1 come from your house but on 4/03/2022 she only told me that she was in your house. The 2 young men knocked your door and you moved out and went to the road. You were not at your place of work. After I had beaten PW1 on 4/03/2022 she told me that she was in your house. I hit you with your stick and you denied that you were not with her. You said that PW1 was at Benja’s place which was not true. I know you from 2019 when I came to that area. When police came to arrest you. You escaped from your home. I reported to the police on 19/04/2022. You went to hide at Nyeri. You were not coming home.” 10. PW3 Leah Wangu, a Clinical Officer from Sagana Sub-County Hospital produced the complainant’s P3 Form, Post Rape Care Form and treatment notes as exhibits. She testified that, “The complainant was brought to our facility with history of having been defiled by a known person. On examination, the minor’s hymen was missing and she had no lacerations. We did a high vaginal swab which revealed presence of spermatozoa. No infection was noted. She had no discharge. My conclusion was that there was penetration due to presence of spermatozoa.” 11. On cross examination, she stated that, “I do not know whether you are who committed the act. I did not establish whether that was the first time but the hymen was missing.” 12. PW4 Sergeant Joseph Ndambuki testified that, “On 5/10/2022 a case was being investigated by Pc Kanga which was a case of defilement. Our DCI office was asked to track the suspect down since he had run away from home. Through our tracking system, we managed to track accused down at Karigaini in Muhoyas Location, Nyeri County. We covered the suspect from his aunt’s home. Pc Kanga identified the suspect by his name and he responded. We then hand cuffed him. As we went towards our vehicle the suspect swept Pc kanga by his feet and the officer fell down. Accused then run away towards the coffee plantation. I fired 2 shots in the air. Accused stopped and we re-arrested him. Pc Kanga was injured in his feet. We brought accused to Sagana police station awaiting the charge. I also advised Pc Kanga to seek medical attention for his injury. The suspect is the accused herein.” 13. On cross examination, he stated that, “I arrested you from your aunt’s place. You had run away to Nyeri. Pc Kanga identified you by your name.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4466/eng@2026-02-20 3

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14. PW5 PC Abednego Kanga, the Investigating Officer herein produced a copy of the complainant’s birth certificate as an exhibit. He testified that, “On 20/04/2022 the victim in company of her mother came to the police station and reported that on 19/04/2022 at around 17.00 hours the victim was heading to Western Shopping Centre around Sagana when accused lured her and she entered into his house where accused had forceful canal knowledge of the victim. On 21/04/2022 I took the victim’s statement and on 22/04/2022 I recorded her mother’s statement. On 5/10/2022 with sergeant Ndambuki, Pc Gitonga and another officer we went to Kongoini area in Nyeri County where accused had escaped to evade arrest. We arrested accused. Accused had escaped for almost 6 months. The complainant was aged 13 years old and a standard 6 pupils. Accused and the victim were known to each other. In fact the victim’s mother had warned accused about the relationship.” 15. On cross examination, he stated that, “My investigations revealed that you were with the victim.” 16. In his unsworn defence, DW1 Alex Njiraine Mutugi, the Appellant herein testified that, “I do casual jobs. I did not commit the offence. I was an allegation. There was a grudge between my mother and complainant’s mother. My mother had difference with the complainant’s mother. My mother sold a piece of land and it is like the complainant’s mother wanted a share of the money. I did not defile the victim. I was not with the victim on 19/04/2023. I pray that the case be ruled in my favour.” 17. DW2 Faith Wambui testified that, “I do business. Accused is my neighbour. On 19/04/2022 I was coming from the market. I met Mama Shiru ahead of me. The minor was with the mother ahead of me but when I got near them. I did not see Shiru. Shiru’s mother went where accused was standing. I passed them. I then met another friend of mine and we stopped. I heard Mama Shiru exchanging with accused's brother. I wanted to know what was happening. I heard Mama Shiru say that accused had defiled her daughter. I proceeded home.” 18. On cross examination, she stated that, “I am not related to Mama Shiru. I saw accused in the evening at their construction site. Accused was with other young man. I had seen Shiru around the same evening. Mama Shiru has a grudge with accused’s family over land but I do not know the extend of the grudge. I do not know whether accused’s hold run away.” Submissions 19. The Appellant cited Pandya v Republic [1957] EA 336 and Kiilu & Another v Republic [2005] eKLR, on the duty of the first appellate court. He urged that the charge was defective for failing to specify the time when the alleged offence was committed, whether the alleged act was committed unlawfully, and citing the wrong provision of the law, and cited Republic v Karanja [2014] eKLR, Muiruri v Republic [2003] KLR 552 Mwaniki v Republic [2009] eKLR, Josiah Mutua Mutemi v Republic [2019] eKLR and Njeru v Republic [2010] eKLR. He urged that the medical expert’s conclusion of penetration based solely on the presence of spermatozoa lacked corroborative evidence, and cited Chembe v Republic [2024] KECA 647 (KLR). He submitted that there were inconsistencies in the testimonies led by the prosecution witnesses, and cited Johnson Muiruri v Republic [1983] KLR 445 and DMK v Republic (Criminal Appeal E056 of 2022) [2023] KEHC 25235 (KLR) (9 November 2023). He insisted that there existed a grudge regarding the succession of land between the victim’s family and his family, and cited Adome v Ogutu (Succession Appeal 24 of 2021) [20247 KEHC 7682 (KLR) (28 June 2024). He termed the trial court’s omission to advise him of this right to legal representation amounted to a violation of his constitutional rights, thereby undermining the fairness of the trial process, and cited David Njoroge Macharia v Republic [2011] eKLR. He urged that his detention for more than 24 hours was a violation of his right under Article 49 (1) (f) (i) of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4466/eng@2026-02-20 4

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the Constitution, and cited Republic v Commissioner of Police & Another [2017] eKLR and Julius Kamau Mbugua v Republic [2008] eKLR. PARAGRAPH 20. The Respondent urged that penetration was confirmed by PW3 and the Appellant was positively identified by the complainant who stated that they exchanged phone numbers. It submitted that the Appellant did not deny knowing the complainant or being present at the scene of crime. It urged that the Appellant was arrested on 5/10/2022 and arraigned on 7/10/2022. Analysis and Determination 21. The issues for determination are whether the offence was proved beyond reasonable doubt, whether the Appellant’s defence, whether section 333 (2) of the Criminal Procedure Code was considered and whether the Appellant’s rights under Article 49 (1) (f) (i) were violated. Proof of the ofience 22. The ingredients of this offence which the prosecution was required to prove beyond reasonable doubt are age, penetration and identity of the perpetrator. 23. PW5 produced PW1’s birth certificates which was conclusive evidence that she was aged 14 years having been born on 9/8/2008. 24. On penetration, PW3 stated that when the complainant was examined, everything was normal save for the missing hymen and presence of spermatozoa. 25. PW1 categorically stated that, “On 19/04/2022 at about 2.00 pm accused made a call to me. I had a phone which my mother had bought for me. Accused asked me whether I was free and I said yes. I was alone at home. I went to accused’s home. I found accused alone. In April 2022 I had sex with accused in his bed room. I saw my mother pass by and I rushed home. Accused forced me into sex. He removed my clothes and inserted his private organ into my private part.” She clarified in re-examination, she stated that, “The incident was on 19/04/2022 but I cannot remember the day of the week.” 26. On her part, PW2 insisted that she and a neighbour’s child had seen the complainant coming out of the Appellant’s house on the material day, when she testified that, “I also saw PW1 move out of your house. On 19/04/2022 I saw PW1 come from your house but on 4/03/2022 she only told me that she was in your house.” 27. The evidence on record, taken wholesomely, is proof beyond reasonable doubt that the Appellant committed the offence herein. Defence 28. The Appellant’s defence that he was not with the complainant on the material day, was a mere denial because he was placed at the scene by the complainant and PW2. The purported existence of a grudge between the Appellant’s mother and the complainant’s mother was irrefutably denied by PW1 and PW2. Pre-trial detention 29. The Appellant was in incarceration during the entire trial and trial court was enjoined by the provisions of section 333 (2) of the Criminal Procedure Code, to factor in that pre-trial period during sentencing. It thus fell into error when it failed to do so. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4466/eng@2026-02-20 5

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Violation of rights 30. The Appellant contends that he was arrested on 5th October, 2022 and arraigned in court 2 days later on 7th October, 2022, which was a violation of his rights under Article 49 (1) (f) (i) of the Constitution. The investigating officer testified that the Appellant had fled, where he was subsequently traced and apprehended. He was thereafter escorted back to Sagana for processing, which sufficiently accounts for the delay in his arraignment before the court. ORDERS 31. Accordingly, for the reasons set out above, the Court finds that the appeal is without merit and it is dismissed. 32. The Appellant’s sentence shall commence from the date of arrest on 5/10/2022, in accordance with the provisions of section 333 (2) of the Criminal Procedure Code. 33. File Closed. Order accordingly. DATED AND DELIVERED THIS 20TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mwangi for the DPP. Appellant in person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4466/eng@2026-02-20 6

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