Nelson Muchoki Irima v Republic

The Appeal 4. Dissatisfied with the decision of the trial court, the appellant filed an undated petition of appeal seeking orders that the appeal be allowed, the conviction and sentence be quashed, and that he be set at liberty. The appeal is premised on the grounds that: 1. That the learned trial magistrate erred in both matters of law and facts by relying on contradictory evidence; 2. That the trial court erred in both matters of law and facts by convicting the appellant whereas the critical ingredient was not proved beyond reasonable doubt; 3. That the learned trial magistrate erred in both matters of law and facts by rejecting appellant’s witnesses depended which was enough to displace the case; and 4. That the trail magistrate erred in both matters of law and facts by failing to consider the irregularities occasioned during the trial process hence violating Article 50 of the Constitution of Kenya 2010. The Evidence at the trial Court 5. At the hearing, PW1 was Christine Njeri a Clinical Officer at Kiritiri Health Center. She examined the victim after being referred from Gachoka Police Station. She stated that she conducted the examination on 16th December 2024 and observed that the vaginal hymen was missing. She filled the P3 and PRC forms which she produced as evidence. She stated that there were no spermatozoa and that all the tests conducted returned a negative result. On cross-examination, she stated that the presence of bruises or lack thereof on the victim’s private parts depended on how soon she was presented for examination after the incident. That it was not always the case that sexual activity with a virgin would result in bruising. 6. PW2 was the victim who testified after a voire dire examination. She stated that she was 12 years old at the time of the incident and she had a baptism card to prove this. She stated that on the day of the incident, she was visiting her friend S at the home of Peter Njiru. She was a frequent visitor for them and that day she was sleeping over at the friend’s house. At bedtime, she found that all the beds were occupied and she spread a mat on the floor to sleep on. She then went to Angeline’s house to pick some bedding and while on the way, the appellant grabbed her. She stated that the appellant was staying in one of the many rooms in that house. That the appellant dragged her into one of the rooms where he was alone and he defiled her on the sofa. 7. She stated that she saw him that day clearly and that the way he was dressed in court is the same way he was dressed on the night of the incident. That the appellant is well known to her as he was the step son of Peter Njiru who was hosting them that night. She stated that after defiling her, the appellant pushed her out of the room and then gave her the beddings she was looking for. The next morning, she called her mother and asked her to pass by and pick her up although she did not tell her the reason. When she met her mother, she told her everything and then they returned to Peter Njiru’s home and told him what his son had done. 8. At first, the appellant denied but he later confirmed that he did it. They went to the police station where the incident was reported and then she was taken to the hospital for examination. On crossexamination, she stated that when the appellant was defiling her, she was not asleep but Angeline was awake. That she did not scream because she did not want people to know what had happened and she https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5099/eng@2026-04-22 2

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feared that they would not believe her. She stated that the appellant forced himself on her and she did not know why she did not suffer any visible injuries. 9. The victim’s mother testified as PW3. She produced the victim’s certificate of baptism and stated that she was 12 years old at the time of the incident. She stated that PW2 went to visit the daughter of the daughter-in-law of Peter. On 16th December 2024, she was buying maize at Ngariama when PW2 called to tell her to pick her up from Peter’s home. PW2 said that she could not explain on the phone why she wanted to be picked up. When they met in person, PW2 told her that she had been defiled the previous night. 10. The witness stated that she knew that the house where the victim went had only 2 men namely Peter and Nelson, the appellant. She went to the home of Peter and asked him about the incident. Peter woke the appellant up and asked him about it. At first, he denied but later, he accepted that he defiled the victim. The victim was taken to the hospital via Gachoka Police Station where the matter was reported. In cross-examination, she denied ever threatening the appellant prior to the incident. That there are surveillance cameras in Peter’s home but she did not know why the footage was not produced as evidence. 11. PW4 was the Investigating Officer, PC Hellen Njoki of Gachoka Police Station. She stated that the matter was reported at the police station. The victim told her that on the night of the incident, she was at her cousins’ home and at bedtime, she was going to Angeline’s room to collect beddings when she met the appellant. That the appellant dragged her into his room and defiled her. After that, he sent her out of his room and closed the door. 12. After the matter was reported, she escorted the child to the hospital for examination and treatment. She arrested the appellant and charged him with the offence. On cross-examination, she stated that she did not establish any ill-motive on the part of the complainant as against the appellant. She stated that the appellant admitted the offence in her presence and even apologized. 13. DW1 was the appellant who stated that on 15th December 2024, he returned from church, then went to visit his cousins and they were watching television together. They parted ways at around midnight and he slept until the next morning. When he woke up, he went to check on the mangoes in the farm and to make some calls. That morning, PW3 ridiculed him and told him that he would go to prison for 15 years. On the following Tuesday, he texted PW3 over the issue and she agreed to meet him somewhere to discuss it. 14. When they met, PW3 told him to accompany her to the police station where she would go to clear his name. Upon arrival at the police station, he was arrested and placed in the cells and the following day he was arraigned. On cross-examination, he stated that PW2 and PW3 are known to him as they attend the same church and they are family friends of his uncle. That he suspected that PW3 prevailed upon PW2 to implicate him. 15. DW2 was Sharon Makena a hairdresser. She stated that she was in the company of the appellant when they returned from church and that he was watching videos on the phone with Angeline. Later that evening, the appellant and Angeline went to their room together to sleep. She stated that she remained watching television until midnight. The following morning, PW2 borrowed her phone to make a call and she asked her mother to pick her up by the roadside. 16. Shortly after PW3 arrived, both her and PW2 returned to the house and asked where the appellant was. PW3 threatened the appellant saying that he would rot in jail for raping PW2. On cross-examination, she stated that PW2 was not with them in the room where they were watching television, rather she was in the next room where babies were being fed. She stated that the appellant slept in her brother’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5099/eng@2026-04-22 3

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room while Angeline slept in the next room. She stated that the family of PW2 and PW3 does not have any differences with her family. She also did not know of any grudge between the appellant and the complainant. 17. DW3 was Angeline Musyoka who stated that on 15th December 2024, the appellant was in the company of the others who were coming from church. They all wet to the home of DW2 to watch a TV show. Later, PW2 went to her room to ask for some beddings and at the time, she was changing her babies’ nappies. After this, they all returned to watch television and at around midnight, they all retired. The appellant picked the keys to his room from her and then he went away. 18. On cross-examination, she stated that when she was changing the babies in her room, she had left the appellant in DW2’s room watching television. That the appellant had visited them severally before that day and his room was close to hers. From her house, it was not possible to tell what was happening in the appellant’s room even thought they were adjacent. She was not aware of any differences between the appellant and the complainant. 19. DW4 was Agnes Irima, the appellant’s mother, who stated that the appellant called to tell her that he had been arrested for allegedly defiling a child. That PW3 called her and told her that the appellant had been arraigned and that the Magistrate had asked for Kshs. 5,000/= to set him free. She sourced for the money and then asked PW3 why she had caused the appellant to be arraigned in the first place. 20. That PW3 told her that she had reported because she had been forced to do so by other people whom she did not disclose. She asked PW3 why she had taken PW2 to hospital and she stated that the appellant had ejaculated on PW2’s thighs when they were struggling and the story did not sit well with her. On cross-examination, she stated that she gave money to PW3 to pass the same to the Magistrate who would set the appellant free. She stated that the appellant was framed for the offence. 21. DW5 was Moses Njagi Njeru who testified that PW3 was given Kshs.5,000/= by the brother of the appellant and the money was to go towards arranging to have the appellant released. On crossexamination, he stated that he was present when PW3 testified and that since she was given the money, she never returned their phone calls which went unanswered. 22. DW6 was Charles Waweru Irima, the appellant’s father. He stated that PW3 called him with a view to resolving the matter. She asked him for Kshs.5,000/= because the appellant never touched the child. He and DW5 gathered some money and then handed it over to PW3. On cross-examination, he said PW3 had asked for Kshs.30,000/= but she later accepted Kshs.5,000/=. That the money was supposed to persuade the prosecutor to terminate the case but the case went on. He did not report the matter to the police. Parties’ Submissions 23. The appeal was canvassed by way of written submissions. 24. The appellant, relying on the case of Miller v Minister of Pensions (1947) 2 All ER 372, submitted that the required standard of proof was not met. That the testimony of PW1 did not corroborate that of PW2 and PW3 as to penile penetration. He relied on the cases of Njoki v Republic (Criminal Appeal E013 of 2023) [2024] KEHC 5149 (KLR) and Abdulsalim v Republic [2023] KEHC 25863 (KLR). He stated that proof of penetration was absent and yet is a key element of the offence. That it is suspect that the victim waited until the following day to call her mother. 25. Reliance was placed on Halsbury’s Laws of England Vol. 17, Paragraph 13 and the case of R v Lifchus, [1997] 3 SCR 320. It was argued that the charges were not proved beyond reasonable doubt. Further reliance was placed on the cases of PWK v Republic [2018] KEHC 9015 (KLR), R. v. Quintanilla https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5099/eng@2026-04-22 4

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(M.V.), (1999) 251 A.R. 59 (QB), Bernard Kebiba v Republic [2000] KECA 158 (KLR), Kariuki v Republic [2024] KEHC 6375 (KLR), Paul Kanja Gitari v Republic [2016] KECA 741 (KLR) and KO v Republic [2023] KEHC 18310 (KLR). 26. He respondent relied on section 8(1) & (3) of the Sexual Offences Act and the case of Moses Mwarimbo Dau v Republic [2018] KECA 91 (KLR) where the elements of the offence were described. It argued that the testimony of PW2 is sufficient to prove penetration of the victim who was a proved to be a minor. It relied on section 2 of the Children Act and the case of Edwin Nyambaso Onsongo v Republic [2016] KEHC 4738 (KLR) where the court discussed several means of proving the age of the victim of a sexual offence. It argued that the appellant was properly identified as the perpetrator. It urged the court to uphold the findings of the trial court. Issues for Determination 27. The issues for determination are as follows: 1. Whether the offence was proved beyond reasonable doubt; and 2. Whether the sentence meted out to the appellant was harsh and excessive. Analysis and Determination 28. In the case of Kiilu & Another v Republic (2005)1 KLR 174, the Court of Appeal stated thus regarding the role of an appellate court: “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 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 findings and 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.” 29. 30. As to whether the offence was proved beyond reasonable doubt, section 8(1) and (3) of the Sexual Offences Act provides as follows: “ (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” The elements of the offence may therefore be broken down as follows: 1. There must be proof of the age of the complainant- that the complainant was a child; 2. There should be roof that penetration, as defined under section 2(1) of the Sexual Offences Act, happened to the child; 3. That the perpetrator was positively identified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5099/eng@2026-04-22 5

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31. PW2, the victim, stated that she was 12 years old at the time of the incident. PW3 stated that she had misplaced PW2’s birth certificate. Instead, she produced the victim’s certificate of baptism from Methodist Church in Kenya which indicated the victim’s date of birth as March 2012. In Francis Omuroni v Uganda [2000] EA 179, the court held thus, regarding proof of age of the victim: “ I am of the considered view that the said information was filled upon interrogation on both the complainant and her guardian. I also had a chance to see complainant when she appeared before my court during trial. Based on the above-mentioned fact, physical appearance of the complainant and the response given in voire dire, I have no reason to doubt that the complainant was below 18 years. I make this consideration taking into consideration the above-mentioned case gives the authority to deduce the complainant’s age through observation and common sense.” See also the cases of Mwangi v Republic [2024] KEHC 7890 (KLR) and Edwin Nyambaso Onsongo v Republic (Supra). 32. Additionally, in the case of Alex v Republic [2023] KEHC 19483 (KLR) the court relied on the sentiments of the Court of Appeal in the case of Mwalango Chichoro Mwanjembe v Republic (2016) eKLR as follows;“ The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” [Emphasis added] 33. From this evidence, based on the certificate of baptism and the date of the offence on the charge sheet, the victim was 12 years and 9 months at the time of the incident. Therefore, she is a child within the meaning of the Children Act. 34. PW1 testified that upon examining the victim, she observed that the hymen was missing. The P3 form indicates that the applicant was examined about 18hrs after the incident. There were no other injuries on her genitalia and all other tests were negative. PW2 stated that on the night of the incident, the appellant took her to his room, forced her onto the sofa and removed her clothes. She graphically described how he lifted her dress and pants. He then lowered his trouser and inserted his penis into her vagina. The room was well lit. This is substantial evidence to prove that the victim was penetrated. 35. During her testimony, PW2 identified the appellant in the dock as her assailant. She testified that she knew him from before as the son to the step sister of Peter Njiru; that he intercepted her when she was on the way to Angeline’s room to collect some beddings for the night. Under section 124 of the Evidence Act, the testimony of PW2 is sufficient to identify her assailant without the need for corroboration. The provision states: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5099/eng@2026-04-22 6

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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.” 36. Therefore, it is safe to say that the appellant was sufficiently identified as the assailant. Accordingly, the trial court did not err in its finding that the elements of the offence were proved beyond reasonable doubt. 37. Following conviction, the appellant was sentenced to the mandatory minimum 20-year imprisonment sentence as prescribed under section 8(3) of the Sexual Offences Act, as follows: “ (3) 38. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” The Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) rendered itself on the sentences prescribed under the Sexual Offences Act. It was held thus: “ We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious.” 39. The Supreme Court reiterated its findings in that case through its recent decision in the cases of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) and Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR). It held that until Parliament reviews the sentences imposed in statute, the court has no mandate to review them. 40. The trial court did not err in imposing this sentence since it is a mandatory minimum sentence and it is a lawful sentence under the relevant law. Disposition 41. Ultimately, I find that the trial Court correctly determined that all the elements of the offence were proved beyond reasonable doubt. 42. In the circumstances, the appeal fails and the conviction and sentence are hereby upheld. 43. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 22ND DAY OF APRIL, 2026. R. MWONGO JUDGE Delivered in the presence of: 1. Appellant Present in Court 2. Ms. Mwaniki for Respondent 3. Stella Kithinji - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5099/eng@2026-04-22 7

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