Samuel Macharia Mugo v Director of Public Prosecution

he produced a knife, threatened her with it, and after waiting for other pedestrians to pass, compelled her to follow him to his homestead. 5. That upon arrival at his house, the accused ordered her to remove all her clothes and then proceeded to engage in unprotected sexual intercourse with her on his bed. PW1 further testified that the accused detained her in his house for one week, from 1st to 8th November 2020, telling her she must remain as his wife, and that he locked her inside, only allowing her out at night under his escort to use the latrine. She stated that on 8th November 2020, after laundering clothes, she locked the accused inside the house with a padlock and escaped to a friend’s home in Kanyenyaini, where she borrowed a phone and contacted her mother. She was subsequently rescued by her mother and police officers and taken to Kanyenyaini police station, then referred to Kiawambogo police post and to Kangema Sub‑County Hospital, where a P3 form, treatment notes, and a Post Rape Care form dated 17th November 2020 were completed. 6. During cross‑examination, PW1 acknowledged that she was pregnant at the time of testifying but unequivocally stated that the accused was not responsible for that pregnancy, as more than a year had passed since the incident and she would have delivered if it were his. She also disclosed that the accused had previously engaged in sexual intercourse with her on two prior occasions in April 2020, for which her mother had forgiven him, and that the present case arose from the third incident. She denied colluding with her mother to frame the accused, and affirmed that she had been threatened with a knife and could not scream. 7. PW2 was CWC, the complainant’s mother and a resident of Kiawambogo, testified that on 1st November 2020, PW1 left for Kanyenyaini shopping centre but did not return. She stated that she made inquiries that evening at her home in Kibutha and was informed the complainant was not there, and she retired for the night. The following day, she continued her inquiries in Kanyenyaini but received only negative reports, as no one had seen her daughter. 8. She testified that on 3rd November 2020, she received a call from PW1 using a private number, who told her she was in Murang’a. Because the call originated from a private number, PW2 decided to report the matter at Kiawambogo police post. On the morning of 11th November 2020, she saw the clothes the complainant had disappeared with hung at her gate bearing threatening writings, which prompted her to scream for help. Neighbours responded, and one man called a police officer from Wanjerere, who in turn summoned officers from Kiawambogo police post. PW2 stated that they deliberated on how to locate the complainant, and because the writings on the clothes indicated the complainant was in Kibutha, police proceeded there but found only the appellant’s parents; the appellant and the complainant were not present. Shortly thereafter, the complainant called PW2 and informed her that she was in Kanyenyaini. PW2, accompanied by a lady named MK and a police officer, proceeded to Kanyenyaini and rescued the complainant. They reported the matter to Kanyenyaini police station, were referred to Kiawambogo police post, then to Kangema police station, and finally to Kangema Sub‑County Hospital, where the complainant was examined and the P3 form duly filled. PW2 stated that at the time of the incident, the complainant was 15 years old, having been born on 2nd August 2005. Upon inquiry, the complainant informed PW2 that she had been at the appellant’s homestead for one week, after which she hid at her friend Njoki’s place for two days before calling on the morning of 11th November 2020. PW2 further testified that this was not the first or second incident; the appellant had previously forced the complainant to his home and engaged in sexual intercourse with her, and the incident in this case was the third occurrence. During cross‑examination, PW2 denied any grudge between her family and the appellant’s family and stated that the appellant had sent her text messages pleading for pardon, which she refused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 2

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9. PW3 was PC Cosmas Gitonga Riungu No. 56xxx, then attached to Kiawambogo patrol base as the investigating officer. He testified that on 10th November 2020 at about noon, CWC (PW2) and her daughter GWW(PW1) came to report a defilement case. That the appellant, Samuel Macharia alias Rasta, had taken the complainant to his house after pointing a knife at her and ordering her to walk to his house. That as per the report, the appellant stayed with the complainant at his place from 1st November 2020 to 8th November 2020 and engaged in sexual intercourse with her. That he was able to trace the appellant’s house and arrested him on 16th November 2020. PW3 testified that the complainant was examined at Kangema Sub‑County Hospital, and the doctor confirmed that penetrative sex had taken place. He tendered in evidence the complainant’s birth certificate, which showed she was born on 2nd August 2005. 10. PW4 was a clinical officer named Donnah Maithima. He testified that PW1 gave a history of having been defiled by a person well known to her, with whom she had been cohabiting in his house for one whole week from 1st November 2020 to 8th November 2020. PW4 stated that a pregnancy test was negative, a high vaginal swab did not show any spermatozoa, tests for venereal diseases and HIV were negative, and urinalysis showed few pus cells but no spermatozoa. He noted that the hymen was broken but not freshly broken, no lacerations were observed, though some discharge was noted. PW4 completed the P3 form on 11th November 2020, which he tendered in evidence together with the treatment notes and the Post Rape Care (PRC) form. 11. During cross‑examination, PW4 stated that the appellant was never brought to him for examination, and that a hymen can be broken by other activities such as physical exercise, including bicycle riding. In re‑examination, PW4 stated that the complainant never reported having ever ridden a bicycle. That marked the close of the prosecution case. 12. The trial court considered the evidence adduced and found that the prosecution had established a prima facie case against the accused and accordingly placed him on his defence. 13. Section 211 of the CPC was explained to the accused who opted to remain silent. That marked the close of the defence case. 14. The trial court accordingly found the accused guilty as charged and sentenced the accused to twenty (20) years imprisonment. The Appeal 15. Having been dissatisfied by the decision of the trial court, the accused lodged the present appeal vide a memorandum of appeal citing the following grounds; a. That the learned trial Magistrate erred in law and fact by conducting the trial in violation of my constitutional right to a fair trial under: (i)Article 50(2) (k) (right to adduce and challenge evidence), and (ii) Article 50(2)(5)(a) (right to a copy of the record of the proceedings). b. That, the learned trial magistrate erred in law and facts by relying with facts that were actually contradictory, misplaced and unjust thereby arriving at an improper, unjust and uninformed decision and judgement. c. That, the learned trial magistrate erred on both law and facts by failing to take into account the appellant's plausible defense which adequately shaken the prosecutor's case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 3

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d. That, the learned trial magistrate erred in law and facts by disregarding pertinent information of facts and evidence which were not appropriately adduced for corroboration and disregarding the appellants facts and statements. e. That, the learned trial magistrate erred on both law and facts by basing my conviction sorely on the evidence of a single witness who was herself posted as unreliable witness. f. That, the learned trial magistrate erred on both law and facts by failing to find that the evidence adduced was contradictory and unsafe to base the conviction. g. That, the honorable trial magistrate erred in fact in sentencing me to the minimum mandatory sentence without appreciating the decisions of ] ODUNGA in petition no 15 and 16 2015, consolidated and in J MATIVO in CONSTITUTIONAL & JUDICIAL REVIEW DIVISION PETITION NO. 97 OF 2021. h. That, the learned trial magistrate erred on both law and facts by meting a harsh and excessive sentence without considering that the trial magistrate's hands are now untied 16. The appellant prayed that the appeal be allowed, the conviction squashed and the sentence to be set aside. 17. The appeal was canvassed by way of written submissions. On record are submissions filed in court on 8th January 2025 by the appellant, and submissions dated 17th November 2025 filed by the respondent, all of which this court has duly considered. Appellant's Submissions 18. The appellant submitted that his right to a fair trial was undermined by serious gaps in the prosecution case, particularly regarding his arrest and the investigations conducted. He argued that the arresting officer was never called to testify, no statement from that officer was produced, and even the investigating officer was unable to clearly explain where, when, and by whom he was arrested. According to the appellant, this left material gaps in the chain of events and weakened the prosecution case considerably. He also faulted the investigating officer for what he termed as shoddy investigations, pointing to contradictions on the date of arrest, the occurrence book number, and the circumstances under which the complainant was allegedly traced. 19. It was also the appellant’s case that the prosecution failed to prove the charge beyond reasonable doubt. He challenged the complainant’s evidence as uncorroborated by the medical evidence, emphasizing the medical officer’s concession that the treatment received was not captured in the treatment notes and that the hymen could have been broken by causes other than sexual intercourse. He submitted that the medical findings did not firmly support the allegation of defilement and that this discrepancy ought to have been resolved in his favour. To underscore the standard of proof required in criminal cases, he cited authorities on proof beyond reasonable doubt and urged the court to find that the prosecution evidence fell short of that threshold. 20. The appellant also placed considerable emphasis on the complainant’s own testimony, which he argued disclosed conduct inconsistent with forcible defilement and raised doubt as to the prosecution narrative. He pointed to her evidence that there had allegedly been previous sexual encounters, that her mother had previously forgiven him, that she did not immediately report the matter to any authority, that she later became pregnant by another person, and that she had dropped out of school and was unwilling to return. From these matters, the appellant sought to persuade the court that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 4

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complainant was a willing participant and that her conduct, together with that of her parents, cast doubt on the credibility and reliability of the prosecution case. 21. Further, the appellant submitted that the prosecution failed to call crucial witnesses whose evidence would have assisted the court to establish the truth. He relied on Bukenya & Others v Uganda for the proposition that the prosecution must avail all necessary witnesses, even where their evidence may be adverse to its case. In that regard, he identified as crucial but uncalled witnesses the complainant’s friend BN, MK, the arresting officer, the complainant’s sister EW, and one CN, all of whom, in his view, could have clarified important aspects of the case. He argued that the failure to record statements from and call these witnesses prejudiced his defence and entitled him to the benefit of doubt. 22. The appellant further averred that the victim herein was habitual and had engaged in sexual intercourse with the appellant numerous times as per her own allegations. The appellant noted that PW1 clearly stated that it was not the first time the accused engaged in sexual intercourse with her, that the first time her mother pardoned the accused, the second time she forgave him, and the third time she decided to report. Further, that In re-examination, PW1 also stated that the accused had sex with her at night when her sister was sleeping, and that her mother decided to talk it out with the accused's mother. The appellant submitted that the victim had also testified that when the accused took her to his mother and told her that he wanted to marry the victim, she did not reject but stated that she had no problem with that, and the victim did not tell the accused's mother about being kidnapped. The appellant contended that the victim appeared to have been willing to indulge in sexual relations with the appellant. 23. On sentence, the appellant argued that the learned trial magistrate imposed the sentence of twenty years’ imprisonment solely because it was the sentence prescribed under section 8(3) of the Sexual Offences Act, without meaningfully exercising judicial discretion. He submitted that the mandatory minimum nature of the sentence was unconstitutional and relied on the decisions in BW v Republic, Francis Karioko Muruatetu & Another v Republic, and Dismas Wafula Kilwake v Republic to contend that sentencing courts retain discretion even in sexual offences matters. He maintained that the trial court merely noted that it had considered mitigation, but in substance imposed the statutory sentence without adequate regard to the circumstances of the case or his mitigation. Respondent’s Submissions. 24. The respondent submitted that the ingredients of defilement were sufficiently proved. Counsel pointed to the complainant’s own testimony, the evidence of her mother, and the birth certificate produced at the trial, all of which showed that the complainant was 15 years old at the material time. 25. On penetration, the respondent submitted that the complainant gave a clear and descriptive account of the sexual act, and that her evidence was corroborated by the clinical officer who examined her and found that her hymen was broken and concluded that sexual assault had occurred. The respondent further argued that, even without medical corroboration, a conviction in a sexual offence case may properly be founded on the sole testimony of the complainant under the proviso to section 124 of the Evidence Act, so long as the court believes the complainant and records reasons for that belief. In support of that proposition, the respondent relied on Geoffrey Kioji v Republic, Criminal Appeal No. 270 of 2010 (Nyeri). 26. As to identification of the perpetrator, the respondent submitted that the appellant was positively recognized by the complainant, the two having known each other before, since the appellant had been the boyfriend of the complainant’s sister. It was argued that the complainant was consistent in her narration and remained firm even under cross-examination, thereby leaving no doubt as to the identity of the offender. The respondent urged the court to respect the trial court’s assessment of the complainant’s credibility, given that the trial magistrate had the benefit of observing her demeanour firsthand. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 5

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27. The respondent also dismissed the appellant’s complaint on contradictions and inconsistencies, submitting that the prosecution witnesses gave a consistent account of the events and that no material contradiction arose to weaken the prosecution case. It was further contended that, even where minor inconsistencies exist, such discrepancies do not necessarily render a prosecution case fatally defective unless they are substantial and go to the root of the case. On this point, the respondent relied on Richard Munene v Republic, for the principle that only fundamental contradictions affecting the main issues in controversy can entitle an accused person to the benefit of doubt. 28. Regarding the defence and sentence, the respondent submitted that the appellant offered no substantive defence, having elected to remain silent. On sentence, it was argued that the term of twenty years’ imprisonment was lawful under the Sexual Offences Act, given that the complainant was 15 years old at the time of the offence. The respondent emphasized that the appellant was a person known to the complainant and had betrayed that familiarity by preying on a child instead of protecting her. For those reasons, the respondent urged the court to dismiss the appeal, affirm the conviction, and uphold the sentence. Analysis and Determination 29. This being a first appeal, this court is under a duty to re-evaluate and re-analyze the evidence tendered before the trial court and to arrive at its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify. This court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:“ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 30. Having carefully considered the record of appeal, the judgment of the trial court, the grounds of appeal, and the rival submissions, I am of the view that the grounds raised may conveniently be condensed into the following issues for determination: i. Whether the appellant’s right to a fair trial was violated. ii. Whether the prosecution proved the offence of defilement beyond reasonable doubt iii. Whether the trial court failed to consider the appellant’s defence iv. Whether the sentence imposed was lawful and proper. 31. On the first issue, the appellant complained that his fair trial rights under Article 50 of the Constitution were infringed. In the memorandum of appeal, he specifically invoked Article 50(2)(k), which guarantees an accused person the right to adduce and challenge evidence. He also cited violation of Article 50(5)(a) as conferring a right to a copy of the record of proceedings. 32. On Article 50(2)(k), the question is whether the appellant was denied an opportunity to test the prosecution case or to place his own case before the court. The record does not disclose such denial. On the contrary, the proceedings show that the appellant participated in the trial, heard the prosecution https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 6

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witnesses testify, and cross-examined them at length. After the prosecution closed its case, the trial court rendered a ruling that he had a case to answer, whereupon the provisions of Section 211 of the Criminal Procedure Code were explained to him, and he elected to remain silent. That election was his constitutional choice, but once he voluntarily chose not to give evidence or call witnesses, he cannot properly turn around and contend that he was denied the right to adduce evidence. 33. Similarly, the trial court proceedings show that witness statements relied on by the prosecution were provided to the appellant as stipulated under Article 50(j) of the Constitution. Article 50(5)(a) of the Constitution provides as follows: “ (5) An accused persona. charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and b. has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.” 34. The wording is clear that the entitlement arises ‘on request’. There is nothing on the record to show that the appellant made a request before the trial court for copies of the proceedings and that such request was refused. Nor is there any demonstration that the absence of proceedings, if at all, prejudiced the conduct of the trial before the subordinate court. On appeal, when the matter came up for mention on 18.03.2024 before the Deputy Registrar, the appellant requested for a copy of the proceedings, to which the court ordered that the same be supplied upon the appellant. I find no violation of Article 50(5)(a), there being no material showing that he requested proceedings and was denied them. 35. Turning to whether the offence was proved, the ingredients of defilement are now settled: the age of the complainant, proof of penetration, and the identity of the perpetrator. Those are the essential elements this court must test against the evidence on record. 36. As regards age, the law is clear that age may be proved by documentary evidence such as a birth certificate, or by the evidence of a parent or guardian, among other credible forms of proof. The Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement: “ ... 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 documents, 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. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable..." 37. In the present case, both documentary and oral evidence were tendered. The complainant testified that she was born on 2nd August 2005, and a birth certificate was produced. PW2, her mother, equally testified that the complainant was 15 years old at the material time. I am therefore satisfied that the complainant was a child aged 15 years within the meaning of section 8(3) of the Sexual Offences Act. 38. On penetration, the law does not require medical evidence as the only means of proving penetration. In sexual offences, the evidence of the complainant, if believed, may suffice, and medical evidence serves https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 7

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only as supporting material where available. In Lumbasi v Republic (Criminal Appeal 17 of 2016), the court reaffirmed that proof of a sexual offence may be established through the victim’s evidence, medical evidence, circumstantial evidence, or a combination thereof, and that medical examination of the accused is not mandatory. 39. PW1 gave a direct account that the appellant, after threatening her with a knife, took her to his house, ordered her to remove her clothes, and had sexual intercourse with her. She further testified that he detained her there for about one week and repeatedly kept her confined. PW4, the clinical officer, examined her and found that the hymen was broken, though not freshly broken, and completed the P3 form, treatment notes, and PRC form. While no spermatozoa were seen and there were no fresh lacerations, the medical examination was conducted after the incident, and absence of spermatozoa is not conclusive against penetration. The complainant’s own testimony on penetration was clear and unwavering. I therefore, find no merit in the appellant’s argument that the medical evidence exonerated him or fatally weakened the prosecution case. 40. On the identity of the offender, the complainant did not testify about a stranger. She stated that she knew the appellant before the incident as her elder sister’s boyfriend. This was, therefore, a case of recognition, which is more reliable than mere visual identification of a stranger. Her account was consistent that it was the appellant who intercepted her, threatened her with a knife, took her to his house, and kept her there. The possibility of mistaken identity did not arise on the evidence before the trial court. PW2 also testified to prior incidents involving the same appellant and the complainant. I am satisfied that the appellant was positively identified as the perpetrator. From the analysis laid out above, I find that the prosecution sufficiently proved the ingredients of defilement before the trial court. 41. The appellant further faulted the conviction on the basis that it rested on the evidence of a single witness. That complaint is legally untenable in the context of sexual offences. The proviso to Section 124 of the Evidence Act expressly permits a conviction to be founded on the sole evidence of the complainant in a sexual offence if the court, for reasons to be recorded, is satisfied that the complainant is telling the truth. 42. In the case of JWA v Republic [2014] eKLR, the Court of Appeal observed: “We note that the appellant was charged with a sexual offence and the proviso to section 124 of the Evidence Act, clearly states that corroboration is not mandatory. The trial court having conducted a voire dire examination of PW1 and being satisfied that the complainant was a truthful witness, we see no error in law on the part of the High Court in concurring with the findings of the trial magistrate.” 43. The constitutionality and operation of that proviso were discussed in Lumbasi v Republic(supra), where the court held that corroboration is not mandatory in sexual offences so long as the court believes the complainant and records the reasons for that belief. 44. I have also considered the alleged contradictions and inconsistencies relied on by the appellant, particularly regarding the date of report, date of arrest, and the sequence in which the complainant was traced and rescued. In my view, the discrepancies emerging from the evidence of PW2 and PW3 are minor and peripheral. They do not go to the substance of the charge, namely whether the complainant was a child, whether she was sexually penetrated, and whether the appellant was the person responsible. The law is that only material contradictions that go to the root of the prosecution case can vitiate a conviction; minor inconsistencies attributable to lapse of time or differing narration do not. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 8

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45. The appellant also argued that crucial witnesses were not called, including the arresting officer, BN, MK, the complainant’s sister EW, and one CN. The governing principle here is Section 143 of the Evidence Act which expressly provides that, “ No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” 46. It therefore holds that while the prosecution is under a duty to call witnesses necessary to establish the truth, it is not required to call a superfluity of witnesses. An adverse inference will only arise where the evidence called is barely adequate and it appears that material witnesses were withheld. (See Bukenya v Uganda). In the present case, PW1’s testimony was direct and consistent in pointing out the appellant as her defiler. She narrated how the appellant took her to his home, and had sexual relations with her and proceeded to lock her in his house for a period of one week. Therefore, this ground of appeal also fails. 47. The appellant, in his submissions, also placed considerable weight on the complainant’s evidence that there had been previous sexual encounters and suggested that she was a willing participant. That argument cannot avail him. The complainant was a child aged 15 years. In law, a child cannot consent to sexual intercourse, and any purported acquiescence does not afford a defence to a charge of defilement. More importantly, the complainant’s evidence in relation to the present charge was that she was threatened with a knife, compelled to follow the appellant, and kept in his house for a week. That account was neither shaken in cross-examination nor displaced by any defence evidence. The reliance on her subsequent pregnancy by another person, school status, or prior contacts with the appellant did not negate the commission of the offence charged. 48. As to the complaint that the trial court failed to consider the defence, the record shows that after the prosecution case closed, the appellant was placed on his defence and, upon section 211 of the Criminal Procedure Code being explained, he elected to remain silent. The trial court cannot be faulted for failing to analyse a “plausible defence” that was never tendered. In any event, the burden of proof remained throughout on the prosecution, and from my own re-evaluation of the evidence, that burden was discharged. 49. On sentence, the appellant was convicted under section 8(1) as read with section 8(3) of the Sexual Offences Act, which prescribes a sentence of not less than twenty years’ imprisonment for defilement of a child between the ages of twelve and fifteen years. The trial court imposed twenty years’ imprisonment. 50. The appellant argued that the court failed to exercise sentencing discretion and relied on Muruatetu, BW v Republic, and Dismas Wafula Kilwake v Republic. However, the Supreme Court in its 6th July 2021 directions clarified that the Muruatetu decision did not invalidate mandatory or minimum sentences in the Sexual Offences Act and was not authority for that broader proposition. 51. In the end, I am satisfied that the prosecution proved the charge of defilement against the appellant beyond reasonable doubt. I accordingly find no basis for interfering with either the conviction or the sentence imposed by the trial court. 52. The appeal is dismissed on both conviction and sentence. 53. Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED ONLINE AT KAKAMEGA THIS 24TH DAY OF APRIL, 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 9

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S.N MBUNGI JUDGE In the Presence of:CA: Velma Applicant present. Mwakio for ODPP Present. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5172/eng@2026-04-24 10

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