Evanson Maina Mburu v Republic

d. The learned trial magistrate erred in law by relying on hearsay evidence, particularly the testimony of PW2, which had no probative value. e. The learned trial magistrate erred in law and fact by relying on medical evidence that did not conclusively connect the appellant to the alleged ofience. f. The learned trial magistrate erred in law by failing to consider that no DNA analysis or scientific evidence was produced to establish that the appellant was the father of the child allegedly born to the complainant. g. The learned trial magistrate erred in law and fact by failing to take into account the material inconsistencies in the complainant's testimony regarding the chronology of events. h. The learned trial magistrate erred in law by relying on an alleged admission by the appellant that was not recorded in accordance with the law governing confessional statements under the Evidence Act. i. The learned trial magistrate erred in law and fact by failing to consider the unreasonable delay in arresting and charging the appellant, which pointed to poor and shoddy investigations. j. The learned trial magistrate erred in law and fact by failing to find that the investigations conducted by the prosecution were incomplete, shoddy and incapable of sustaining a conviction. k. The learned trial magistrate erred in law by failing to properly evaluate and give due consideration to the appellant's defence, thereby dismissing it without sufficient reasons. l. The learned trial magistrate misapplied the proviso to Section 124 of the Evidence Act by relying on the complainant's testimony without adequately addressing the contradictions and doubts arising from the evidence. m. The learned trial magistrate erred in law and fact by shifting the burden of proof to the appellant contrary to established principles of criminal law. n. The conviction of the appellant was unsafe, unsound and against the weight of the evidence on record. 4. The respondent opposed the appeal and contended that it lacked merit. 5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, noting that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno vs the Republic [1972] E. A 32 to guide my decision-making process. 6. Section 8(1) of the Sexual Offences Act defines defilement in the following terms: A person who commits an act which causes penetration with a child is guilty of an ofience termed defilement. An ofience of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients: a. That there was penetration of the complainant’s genitalia; b. That the accused was the perpetrator, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4673/eng@2026-04-09 2

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c. The victim must be below eighteen years old. This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR when Joel Ngugi J. said: Going by this definition of defilement, I agree with Mr. Mwenda on the issues the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. These are the ingredients that the prosecution must prove against an accused person. 7. While DNA can often be useful in establishing the perpetrator's identity, it is not a required element of the ofience. In this particular case, its use was not necessary. 8. E.W.M. (PW1) testified that she was born on the 2nd day of February 2008. This was confirmed by a copy of her birth certificate, produced as an exhibit. Her age as of 2021 January was 13 years and eleven months. Her age was therefore proven. 9. The complainant was examined at Engineer County Hospital by Dr. Agnes Muthoni Macharia on September 26, 2022. During the examination, her hymen was found to be broken, and she was confirmed to be pregnant, indicating that penetration had occurred. 10. E.W.M. (PW1) in her evidence said the appellant was her boyfriend and was the one responsible for her pregnancy. 11. Evanson Maina Mburu, the appellant, denied the ofience and claimed that he was framed when he said he was not ready to marry the complainant. 12. The proviso to section 124 of the Evidence Act provides: Provided that, where in a criminal case involving a sexual ofience, the only evidence is that of the alleged victim of the ofience, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. After perusing the evidence on record, I have no reason to doubt the complainant’s evidence as to who defiled her. 13. The upshot of the foregoing analysis of the evidence on record is that the prosecution proved its case to the required standards against the appellant. The appeal is dismissed. DELIVERED AND SIGNED AT NYANDARUA, THIS 9TH DAY OF APRIL 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4673/eng@2026-04-09 3

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