John Gitau Ng’ang’a v Republic

6. That the trial magistrate erred in law and facts by failing to consider that the witness that was alleged to be an eye witness was not called to testify. 7. The trial magistrate erred in law and facts by failing to consider the fact that the complainant was medically examined four days after the alleged offence and time had already (she had taken birth) lapsed to be able to obtain any evidence. 8. The trial magistrate erred in law and facts by not considering that the complainant was medically examined after she was found at Meru and not found pregnant only much later to be discovered that she was pregnant but no DNA test was done prove the paternity of the child. 9. The trial magistrate erred in law and facts by failing to consider my defense and mitigating factors. Brief facts 2. The Accused is charged with Defilement Contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars of the offence are that on 8th September, 2022 at Kaitheri village, within Kirinyaga County intentionally and unlawfully caused his penis to penetrate the vagina of SKS, a child aged 16 years. On 9th May, 2023 he was convicted of the offence. He sentenced to serve 10 years’ imprisonment. Prosecution Case 3. PW1 – SSK The complainant is a 16-year-old form 2 student at Kiamuruga Secondary School. She is a day scholar. She attends Apostolic Family Church with her mother from year 2022. Previously, they attended Emmanuel Faith Church. The pastor is called John. She was chased away from school on account of school fees on 8th September 2022. Previously, on 8th August 2022 at 1PM, she had visited the accused at his house along Starwood gardens upon his invitation. 4. On 9th August 2022 On the complainant went to Pastor John’s house and did some house chores. On 9th August, 2022 she visited the accused house and after she had completed the household chores the accused kissed her, fondled her breasts, undressed her, removed his trouser and used his fingers to penetrate her vagina. She tried to prevent him but got used to it and did not resist anymore. He then used his penis to penetrate her vagina. The sperm entered into her body. He gave her ksh.500. On 8th September 2022 she went to the accused’s house and they had sex again. He never used protection. 5. The police came knocking at 5 pm. He held her escape through the back door. She wore a black and white blouse, MFI 2a and his grey trouser, MFI 2b. She went to her cousin’s home in Meru. Her mother fetched her the next day and took her to Kerugoya General hospital. 6. On cross-examination, she said that she had sex with the accused in August and September. The first time they had sex was 9th August, 2022. She did not see Margaret Nyambura on 8th September, 2022. She went to see John at 1 pm. She escaped through the iron sheets of the accused’s house. No one saw her. She did not see anyone chasing her. She said that DNA test could reveal the father of the child. 7. Pw2 – Sarah Wawira. She is the complainant’s mother. She identified the original birth certificate and claimed that the complainant was born on 5 May 2006. She knew the accused as her pastor at Emmanuel Faith Church. The witness stated that she initially attended the accused person’s church before shifting and forbidding her daughter from attending his church. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 2

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8. On 8th September, 2022, she called a member of her church to inquire if her two children were at the church. She was informed that only Ian was present. Her friend Margaret told her that PW1 was in a relationship with the accused. She then made a report at the Kerugoya police station. At about 5 P.M, police officers accompanied her to the accused person’s house who helped Pw1 to escape through the back door. She escaped to her cousin’s home in Meru. The went to pick her the next day and took her to the police to record a statement. Then proceeded to the hospital. 9. On cross-examination. She met the woman called Margaret who took her to the accused house. The door was locked with a padlock from outside. She did not know about the backdoor. John opened the door. She did not see PW1. She said that she didn’t see the accused lifting the complainant over the fence. 10. On re-examination, she said that they went to the accused’s house with the police. He opened the door after 2 hours. They had something fall. She was looking for her daughter’s clothes. 11. Pw3- Hezron Macharia Maina. He testified that he was a registered clinical officer specializing in ENT and Audiology registration number 4402. He stated that the minor was treated twice at the said hospital. She was treated on 11th September, 2022. She had a mass at the abdomen and tested positive for pregnancy. Her hymen was absent. There were no other injuries. She had white/cream discharge from the vagina orifice. The witness produced the initial treatment notes, P3 form and Post Rape Care form and lab results form. He produced the second P3 form as exb 3, PRC form exb 4, treatment notes exb 5a and b and laboratory results as exb 6a –d. She was alleged to have been defiled by a pastor. She had an abrasive wound on the left leg. It was 4 days old. 12. On cross-examination, he said that Pw1 had no lacerations but her hymen was absent. On 11th September, 2022 she was examined. She was given emergency contraceptives. It was beyond 72 hours. The offence was on 8th September, 2022 at 11 a.m 13. Pw4- Pc Josephine Mwendwa. She testified that on 8th September 2022 at 16.40hrs, she was called by PC Kitor and informed that a client was reporting about her daughter locked in a man’s house. They went to the scene and found the complainant’s mother who led them to the house. The house was locked from outside with a padlock. The accused assisted the minor to escape through the rear door and allowed them to access his house. They did not find the minor. 14. On 11th September, 2022 the minor was availed at the police station. She escorted her to hospital for medical examination. The witness produced a blouse, grey trouser, copy of birth certificate and initial O.B. number. Defence case 15. Dw1- John Gitau. The accused testified under oath. He stated that he was in the house on the material day. He knew the complainant. The complainant was a congregant at his church together and they never had sexual relationship. He testified that the mother moved to a different church. The accused claimed that the complainant’s mother had a grudge against him together with the said Margret who had shifted to a different church. 16. He claimed that he was alone in the house when the police came. They searched the house and recovered nothing. The trouser produced in court was not his. 17. On cross-examination, he stated that he never communicated with the minor. There were no text messages produced in court. He did not assist her to jump over the fence. There was grudge between him and the complainant’s mother for leaving his church. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 3

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Appellant’s submissions 18. PW4 the Investigating Officer (IO) acted on the report by PW2 and went to the scene. After some efforts the IO alleges that the appellant opened the house but the minor was not there. A search of the house did not lead to any evidence being recovered but the appellant was arrested. The clothes produced in court were handed over by PW1 when she came back from MERU. Amongst the clothes handed over by PW1 was trouser alleged to have belonged to the appellant. Nothing tangible was placed before the court to link the trouser to the appellant. No evidence was recovered from the alleged crime scene and all the alleged physical evidence was only given to the police after 4 days and may for all we know be designed to support a fabricated case against the appellant. 19. From the evidence tendered, the testimony of PW1 and 2 is contradictory at best and leaves a lot of gaps. It is not corroborated by independent witnesses there being numerous people at the scene including Margaret who raised the initial alarm. In the case of Erick Onyango Odeng v R (2014) eKLR the court had this to say on contradictory evidence; “ The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyses the contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers.” Respondent’s submissions 20. On the issue of identification, the Appellant, in his defence to court, does not dispute knowing Pw1 and Pw2 as his church members. They knew each other very well and this is not a case where a mistake of identity could arise. They submit that the prosecution proved this ingredient beyond reasonable doubt. 21. On penetration, they submit that sexual intercourse is a private matter; it happens in secrecy. The court would not ordinarily expect individuals to have sex in open places; where there are prying eyes. The ground of appeal by the Appellant that the trial court erred by her failure to consider that the eye witness did not testify does not yield much. The victim gave a firsthand account of the incident. No other witness was present when she was penetrated. This firm testimony alone is sufficient to found a conviction under the circumstances. 22. Issues for determination i. Whether the Appellants were properly identified. ii. Whether the prosecution proved the charge of defilement. iii. Whether the sentence of 10 years was excessive. Analysis 23. The role of the appellate court at first instance is well settled it was held in the case of Okeno v. Republic (1972) EA 32 and the Court of Appeal case of Mark Oiruri Mose v. R (2013) eKLR a court of appeal at first instance is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion of the matter bearing in mind that the trial court had the advantage of observing the demeanor of witnesses. 24. The appellant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006. The elements of the offence of defilement are as follows: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 4

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i. Age of the victim. ii. Whether the appellant was identified as the perpetrator iii. Whether penetration was proved. Age of victim 25. The complainant was 16 years at the time of the alleged offence. The age of the complainant has not been disputed. A certificate of Birth No. 5947825 of 2/9/2016 indicating PW1 was born on 5/5/2006 was produced as Prosecution exhibit No. 1. Whether the Appellants were properly identified 26. PW1 testified that on 8th September 2022 she went to visit the appellant at his house and they had sex. Further, she testified that this was not the first time she was visiting the appellant and that they had previously been communicating via phone calls and text messages. No call data was produced to support this allegation, as PW1 explained on cross-examination she had been asked by the accused to delete communication messages with him so that her mother would not see them, and even though the absence of the call data does not indicate that she did not have sex with the accused. 27. PW1 testified that she left through the back door and run away to Meru where her aunt is said to reside. It is her cousin who sent her fare to travel to Meru. She went to see John at 1 pm. She escaped through the iron sheets of the accused’s house. No one saw her. She did not see anyone chasing her. 28. On further examination, she said that the police came knocking at 5 pm. He helped her escape through the back door. She wore a black and white blouse, MFI 2a and his grey trouser, MFI 2b. 29. PW2 testified that she met the woman called Margaret who took her to the accused house. The door was locked with a padlock from outside. She did not know about the backdoor. John opened the door. She did not see PW1. 30. PW4 testified that they went to the scene and found the complainant’s mother who led them to the house. The house was locked from outside with a padlock. The accused assisted the minor to escape through the rear door and allowed them to access his house. They did not find the minor. 31. DW1 - He testified that he was alone in the house when the police came. They searched the house and recovered nothing. The trouser produced in court was not his. There is no witness who saw the complainant in the appellant’s house. 32. However, the evidence of the minor PW1 as to how she was assisted by the accused to escape through a back door. It was during the day so there is no question of physical identification of the appellant and she testified that the two had had sexual intercourse twice she knew the accused before making it a case of recognition of a person the complainant for over one year as her pastor at his church and she had visited his house three times. PW2 the mother confirmed that the accused had been their pastor together with her children before she moved to another church. Whether the prosecution proved penetration 33. Pw 1 testified that she went Pastor John’s house and did some house chores. On 9th August, 2022 she visited the accused house and after she had completed the household chores the accused kissed her, fondled her breasts, undressed her, removed his trouser and used his fingers to penetrate her vagina. She tried to prevent him but got used to it and did not resist anymore. He then used his penis to penetrate https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 5

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her vagina. The sperm entered into her body. He gave her Kshs 500 to purchase and take P2 as he had ejaculated inside her. On 8th September 2022 she went to the accused’s house and they had sex. He never used protection. 34. Pw3 confirmed that the complainant had been defiled. She was treated on 11th September, 2022. She had a mass at the abdomen and tested positive for pregnancy. Her hymen was absent. There were no other injuries. 35. There were no other witnesses who confirmed that the complainant was defiled by the appellant. The respondent submits that the prosecution has the discretion to call those witnesses whom they think are sufficient to give evidence in proof of their case. 36. Section 124 of the Evidence Act provides that: “ provided that where a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, 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 was telling the truth.” 37. The victim PW1 is the only witness as to what happened in the accused’s house. The witness PW2 and PW4 who came ot the scene did not find the victim because as she said she had been helped to escape through a back door. PW1 is only witness of the defilement and the Court is entitled under section 124 to convict on her evidence of the criminal offence of defilement as the only evidence is that of the victim, if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim was telling the truth. 38. The application of the test in section 124 of the Evidence requires close scrutiny of the statement by the victim and the cross-examination. In this case, the complete flow of the complainant’s evidence, the victim’s age at 16 years making her aware of the duty to tell the truth and there being no evidence of any reasons that would motivate the complainant to lie against the accused and her testimony that she had had sex with the appellant on two occasions. The fact of running away to her auntie in Meru also lend credibility as to the natural reaction of a minor who has been caught wrong-doing, especially of an act of sexual intercourse, by her parent and police officers. The Court is entitled to believe that she was telling the truth. 39. The trial court which observed the complainant testify before it said of her testimony in the judgment of 9/5/2023 as follows: “ The accused claimed that the complainant was not at his house. The minor described his house in detail and stated that she escaped through the back door with his approval and assistance. The mother of the complainant visited the scene with police officers and they testified that there was a back door which was used to escape as they pleaded with the accused to open the door. The accused failed to adduce evidence that there was no such back door or that escape through it was improbable or impossible. Looking at the totality of evidence, and the relevant law as cited I find that the state has proved beyond reasonable doubt that the accused committed the offence of defilement as charged and that the defense of the accused has not created any material doubts in the prosecution case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 6

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Therefore, I find the accused guilty and convict him in the main count under section 215 of the Criminal Procedure Code. G.w. Kirugumi Principal Magistrate.” 40. Of course, the duty to prove a criminal charge lies with the prosecution and the trial court could not require the accused to prove his innocence by the statement that the accused failed to adduce evidence that there was no such back door. In pointing this default, the court was only saying that no evidence had been presented to create a doubt in the consistent prosecution case as the court sates in the following paragraph. Whether it was necessary to do a DNA test under the circumstances 41. The respondent submits that there was no necessity for a DNA test to conducted in this case. Besides, the medical officer clearly explains that a pregnancy may not to be detected the first few days after sexual intercourse. So, the initial test done 4 days after the incident did not detect pregnancy. 42. The Court respectfully agrees with the decision in AML v Republic (2012) eKLR the court stated that: “ The fact of rape or defilement is not proved by D.N.A test but by way of evidence” 43. However, PW1 was examined by Pw3 after one month of the first alleged act of defilement. DNA test could have been conducted to prove the accused was the father of the unborn child but that is a different inquiry. Pw1- She said that DNA test could reveal the father of the child. 44. However, DNA testing is not a precondition to a conviction for defilement or other sexual offence, it is merely a permissive provision under Section 36 (1) of the Sexual Offences Act provides:“ “Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence”. 45. That the provision of 36 of the Sexual Offences Act is merely permissive is clear for the reference to section 26 of the Act, which similarly permits the testing in cases where an accused is charged with HIV infection of an complainant for purposes of establishing that such infection occurred: “ 26. Deliberate transmission of HlV or any other life threatening sexually transmitted disease (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly an willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know— (a) will infect another person with HIV or any other life threatening sexually transmitted disease; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 7

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(b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease; (c) will infect another person with any other sexually transmitted disease,shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less fifteen years but which may be for life. (2) Notwithstanding the provisions of any other law, where a person is charged with committing an offence under this section, the court may direct that an appropriate sample or samples be taken from the accused person, such place and subject to such conditions as the court may direct, for the purpose of ascertaining whether or not he or she is infected with HIV or any other life threatening sexually transmitted disease. (3) The sample or samples taken from an accused person in terms of subsection (2) shall be stored at an appropriate place until finalization of the trial. (4) The court shall, where the accused person is convicted, order that the sample or samples be tested for HIV or any other life threatening sexually transmitted disease and where the accused person is acquitted, order that the sample or samples be destroyed. (5) Where a court has given directions under subsection (4), any medical practitioner or designated person shall, if so requested in writing by a police officer above the rank of a constable, take an appropriate sample or samples from the accused person concerned; (6) An appropriate sample or samples taken in tenns of subsection (5)—(a)shall consist of blood, urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned, in such quantity as is reasonably necessary for the purpose of determining whether or not the accused person is infected with HIV or any other life threatening sexually transmitted disease; and(b)in the case a blood or tissue sample, shall be taken from a part of the accused person's body selected by the medical practitioner or designated person concerned in accordance with accepted medical practice. (7) Without prejudice to any other defence or limitation that may be available under any law, no claim shall lie and no set-off shall operate against— (a) the State; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 8

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(b) any Cabinet Secretary; or (c) any medical practitioner or designated persons,in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5), unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent. (8) Any person who, without reasonable excuse hinders or obstructs the taking of an appropriate sample in terms of subsection (5) shall be guilty of an offence of obstructing the cause of justice and shall on conviction be liable to imprisonment for a term of not less than five years or to a fine of not less fifty thousand shillings or to both. (9) Where a person is convicted of any offence under this Act and it is proved that at the time of the commission of the offence, the convicted person was infected with HIV or any other life threatening sexually transmitted disease whether or not he or she was aware of his or her infection, notwithstanding any other sentence in this Act, he or she shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life. (10) For purposes of this section—(a)the presence in a person's body of HIV antibodies or antigens, detected through an appropriate test or series of tests, shall be prima facie proof that the person concerned is infected with HIV; and(b)if it is proved that a person was infected with HIV after committing an offence referred to in this Act, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when the offence was committed.” 46. What the Court must consider before a conviction for defilement or any other offence is that the elements of the offence have been proved beyond reasonable doubt, and while the conduct of DNA testing may further support the evidence of defilement or other offence, its absence does not absolve the accused if other evidence clearly point to his commission of the offence. 47. The respectfully notes the decision of the court in Muthama v Republic (Criminal Appeal 218 of 2019) [2023] KEHC 18195 (KLR) (Crim) (16 May 2023) (Judgment) where Nzioka J. held: “ In a case where there is clear doubt as to who defiled the complainant upon her own confirmation that she engaged in sexual relationship with more than one person the only way is a DNA test where an issue has resulted out of the sexual relationship.” 48. However, the case before the court in a defilement charge is not one of who between two or more persons defiled the complainant. It is a charge that the appellant defiled the complainant, that the appellant had sexual penetration of the complainant minor. Whether conception ensued the sexual https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 9

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intercourse is immaterial to the charge and want of evidence that the appellant is the father of the complainant’s child has no consequence to the charge. 49. The decision of Gikonyo, J. in WLN v Republic [2021] KEHC 5311 (KLR) is exactly on point that although DNA may be used to prove paternity and therefore defilement or rape where the victim conceives, defilement may still occur without conception and the fact of defilement may be proved by other evidence other than DNA, as follows: “ 47 … DNA result that proves a person to be the biological father of a child conceived through defilement is proof of penetration by the person so found to be the biological father of the child. I wish, however, to disabuse the appellant of the notion that, because he was excluded by DNA results, he did not defile the victim. He may have caused penetration of the child at other time which did not result into a pregnancy and so not covered by the DNA result. Nonetheless, such must be proved through other evidence as required. 50. It bears repeating that, that exclusion by DNA result does not absolve any other sexual intercourse with the minor which may be proved through other evidence. It is the onus of the prosecution to properly tie or connect through evidence, the penetration of a child to the accused. I am aware of the proviso to section 124 of the Evidence Act which permits conviction on the sole evidence of a child who is the victim of sexual assault as long as the court has recorded the reasons of believing the child. I have found that the fact that DNA report excluded the Appellant as the father of the child routs the core of the testimony by PW1- the victim child which was to the effect that she had sex once with the appellant which resulted into the pregnancy. In addition, there was no other cogent and strong evidence which proved any other penetration of the victim by the appellant.” 50. It does not follow that because the complainant suggested that DNA to be conducted, she was doubtful of the father of the child. She had testified that she only had sex with the Accused and her suggestion may well may have been seeking to have the fact that the accused was the father confirmed by the scientific means. 51. That the Prosecution closed the case before ordering for a DNA test does not compromise the case against the appellant, which is confirmed by the evidence of the complainant and corroborated by the medical evidence of the examining doctor. The fact that a person may have had sex with a minor and impregnated her does not exculpate an accused who is shown to similarly have defiled the minor even though his sexual intercourse with the minor did not result in conception. 52. The accused’s defence in explaining the charges as a result of a grudge with the complainant’s mother PW2 over her leaving his church, does not explain the victim’s elaborate evidence of his sexual liaison with her and her attempt to run away to Meru to escape discovery rather than wait to expose the pastor if it was a frameup. The defence does not raise any doubt on the prosecution case. 53. Accordingly, for the reasons set out above, the Court does not find merit in the appeal from conviction and it is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 10

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Whether the sentence was excessive 54. The sentence of imprisonment for ten (10) years passed on the appellant by the trial court is below the sentence term under section 8(4) of the Sexual Offences Act, which provides: “ A person who commits an offence 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.” 55. However, as Prosecution did not seek enhancement of the sentence and the appellant was not warned of before the hearing of this appeal, the Court shall not interfere with the trial court’s sentence. The sentence shall in accordance with section 333 (2) of the Criminal Procedure Code take into account any period of pre-trial detention before conclusion of the trial in the Magistrate’s Court. Orders 56. Accordingly, for the reasons set out above, the Court finds that the appellant’s appeal from conviction and sentence for defilement contrary to sections 8(1) and 8(4) of the Sexual Offences act has not merit, and it is dismissed. 57. The sentence of imprisonment for ten (10) years shall take into account the period of pretrial detention as the appellant waited for conclusion of his trial before the Magistrate’s Court. Order accordingly. DATED AND DELIVERED THIS 16TH DAY OF APRIL 2026. EDWARD M. MURIITHI JUDGE Appearances: Ms. Kiragu for the Appellant Mr. Mwangi for the DPP/Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5065/eng@2026-04-16 11

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