Jason Muiga Githua v Republic

show the child pornographic images on his phone. He then removed the child’s clothes and defiled her, threatening to cut her up if she revealed the incident to anyone. 6. The complainant went on to state that on another occasion her mother had been taken to hospital by her father and she was left under the care of a neighbour. Once again the appellant took her to his house where he defiled her. 7. Sometime later the complainant was in school and the teacher was teaching about private parts. The child then opened up and revealed to her teacher that she had been defiled. The teacher summoned the complainant’s mother to the school and informed her what the child had revealed. 8. PW2 CMN is the complainant’s mother. She told the court that on 21st June 2023, her child’s teacher summoned her to the school. On 22nd June 2023, the mother went to the school, where the teacher informed her that her daughter had revealed that she had been defiled by a close relative. PW2 stated that on 23rd June 2023 while she was preparing the complainant for school, the child said she had pain in her private parts. PW2 examined the child and noticed a wound on her privates. She then took the child to hospital where she was examined and treated. PW2 then reported the defilement to police. 9. PW3 Marvin Nderity Gathigu is a senior medical officer working at the Nyeri PGH. He produces as exhibits the P3 form of the complainant Pexb 1 as well as the PRC form Pexb 2. 10. PW4 Teresia Wanjiru told the court that she is a teacher at [Name Withheld] and that the complainant was one of her students in Grade 3. PW4 testified that on 21st June 2023 she was taking the students through a guidance and counselling session. After the class the complainant sought out the teacher and informed her that she had been defiled by a cousin called ‘Muiga’. PW4 summoned the child’s mother to the school and relayed to her what the child had said. 11. PW5 PC Wilfred Masomo was the arresting officer whilst PW6 Sergent Judith Kipngetich was the investigating officer. 12. At the close of the prosecution case the Appellant was found to have a case to answer and was placed onto his defence. The appellant opted to give a sworn defence in which he denied having defiled the child. The Appellant called one (1) witness in support of his defence. 13. On 29th April 2025 Hon Gituma Senior Resident Magistrate delivered her judgment in which she convicted the Appellant on the main charge of Defilement. After his conviction the Appellant was allowed an opportunity to mitigate. Thereafter the trial court sentenced the appellant to serve a term of Life Imprisonment. Being aggrieved by this judgment the Appellant filed this Memorandum of Appeal which is premised upon the following grounds:“1. That, the learned trial magistrate erred in law by sentencing the appellant to the provided mandatory sentence of Life imprisonment but failed to note that the appellant was a first offender, was a young man thus the court could have awarded a definite sentence in considerations of the provisions of sections 216 and 329 of the criminal procedure code and Articles 50(1) (2) (p) of the constitution and the policy sentencing guidelines (2016). 2. That, the learned trial magistrate erred in law by sentencing the appellant to the provided mandatory sentence of Life imprisonment but failed to note that the Complainant was a child of tender years and her evidence was given without administering Voire dire examination to ascertain whether she understood the meaning of an Oath. This was prejudicial to the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5378/eng@2026-04-24 2

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14. 3. That, the learned trial magistrate erred in law by sentencing the appellant to the provided mandatory sentence of Life imprisonment but failed to note that the ingredients of the charge of defilement were not proved to the required standards of the law. The age of the Victim, Penetration and Identification remained not proved in evidence. 4. That, the learned trial magistrate erred in law by sentencing the appellant to the provided mandatory sentence of Life imprisonment but failed to note that the appellants defense was not considered in total and as against the prosecution evidence provided. 5. Spent. 6. Spent. On 4th July 2025 the Appellant filed the following Supplementary grounds of Appeal:“ 1. The Learned Resident Magistrate erred in law and in fact convicting the Appellant on insufficient, inconsistent and contradictory evidence. A miscarriage of Justice was occasioned to the Appellant. 2. The Learned Senior Resident Magistrate erred in law and in fact in failing to appreciate that vital witnesses were not called who could have shed light one way or the other in this case. Prejudice was occasioned to the Appellant. 3. The Learned Senior Resident Magistrate erred in law and in fact in not fully considering the defence of the Appellant and his witness of the existence of a grudge between him and the complainer’s father one Ndiritu who never recorded a statement thus arriving at an erroneous decision thus convicting the appellant on insufficient evidence. A miscarriage of justice was occasioned to the appellant. 4. The Learned Senior Resident Magistrate erred in law and in fact when she sentenced the Appellant to the Maximum sentence of life imprisonment yet there were strong mitigating factors to persuade her to the contrary thus passing a sentence that was harsh and excessive in the circumstances which was a Life Sentence. Prejudice was occasioned to the Appellant.” 5. The appellant prayed that the Appeal be allowed and the entire judgement and sentence of the Lower Court be set aside.” Analysis And Determination 15. I have carefully considered the appeal before this court, the record of the trial before the Lower Court as well as the written submissions filed by both parties. 15. This is a first appeal in which the duty of the Court is to re-examine and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of OKENO -VSREPUBLIC [1972] EA 32 the court set out the duties of the appellate court as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5378/eng@2026-04-24 3

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lower court’s finding and conclusions, it must make its own findings and draw its own 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, see Peters v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174). 15. Similarly in the case of David Njuguna Wairimu -vs- Republic [2010] eKLR the Court of Appeal stated as follows:“ 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.” 15. The Appellant faced in the lower court a charge of Defilement. In the case of Charles Wamukoya Karani -vs- Republic [2013] eKLR the Court set out the critical ingredients of a charge of Defilement as follows:“ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 15. The age of the victim is a critical factor in a charge of defilement as the law provides for the sentence to imposed (if convicted) based on the child’s age. 15. Rule 4 of the Sexual Offences Rules state that “ When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.” 15. In the case of Francis Omuroni -vs- Uganda, Criminal Appeal No. 2 of 2000, the Court of Appeal of Uganda stated as follows:“ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and commonsense…….” 15. Similarly in Edwin Nyambogo Onsongo -vs- Republic [2016] eKLR the Court stated thus “ …………………….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 valuable.” [Own emphasis] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5378/eng@2026-04-24 4

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15. In this case the complainant told the court that she was aged eight (8) 15. years old and was a Grade 3 pupil. PW2 who was the child’s mother told the court that her daughter was born on 11th February 2015. She produced as an exhibit a copy of the complainant’s birth certificate Pexb 3. The birth certificate Serial number 140711 confirms that the complainant was born on 11th February 2015 at PGH - Nyeri. This is an official document which has not been challenged nor controverted by the Appellant and which I find provides indisputable proof of the age of the complainant. I therefore find that it has been proved that the complainant was aged eight (8) years when the incident occurred. 15. In his grounds of appeal the appellant faulted the trial court for failing to conduct a Voire dire examination before taking the evidence of the complainant, ‘Voire dire’ is a French term which literally means ‘to speak the truth’. This is a preliminary examination which is conducted by a court where the witness is a child of tender years in order to determine whether the child understands the nature of an oath. The trial court must record the questions put to the child as well as the answers given to show that the child is intelligent enough to testify even if not on oath. 26. Section 19 of the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya provides that:“ Where in any proceedings before any court or person having by law or consent of the parties authority to receive evidence, any child of tender years called as a witness does not in the opinion of the court or such person understand the nature of an oath, his evidence may be received though not given upon oath if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth, and his evidence in any proceedings against any person for any offence though not given on oath but otherwise taken and reduced into writing in accordance with Section 233 of the Criminal Procedure Code (Cap 75), shall be deemed to be a deposition within the meaning of that section.” 27. In the case of Johnson Muiruri -vs- Republic [1983] KLR the Court of Appeal expounded on the purpose of a Voire dire examination as follows:“ We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are tendered as witnesses. In Peter Kariga Kilune, Criminal Appeal No. 77 of 1982 (unreported) we said Where in any proceedings before any court a child of tender years is called as a witness, the court is required to form an opinion, on a Voire dire examination, whether the child understands the nature of an oath in which case even his sworn evidence may be received if in the opinion of the court, he is possessed of sufficient intelligence and understands the duty of speaking the truth……….” “It is important to set out the questions and answers when deciding whether a child of tender years understands eh nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided, and not be forced to make assumptions.” A similar opinion was expressed by the Court of Appeal in England recently in Regina v Campell (Times, December 10, 1982): “If the girl (ten years) had given unsworn evidence then corroboration of those issues was an essential requisite. If she gave sworn evidence there was no requirement that he evidence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5378/eng@2026-04-24 5

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had to be corroborated but the jury had to be directed that it would not be safe to convict unless there was corroboration. Dealing with the question of the girl taking the oath it should be borne in mind that where there was an inquiry as to the understanding of a child witness of the nature and solemnity of an oath, the Court of Appeal in R v Lal Khan [1981] 73 Cr App R 190 made it quite it clear that the questions put to a child must appear on the shorthand note so that the course the procedure took in the court below could be seen….. There Lord Justice Bridge said: ‘The important consideration… when a judge has to decide whether a child should properly be sworn, is whether the child has sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth, which is involved in an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.’ There were therefore two aspects when considering whether a child should properly be sworn: first that the child had sufficient appreciation of the particular nature of the case and, second a realization that taking the oath did involve more than the ordinary duty of telling the truth in ordinary day-to-day life.”…………….. In Gabriel s/o Maholi v R [1960] EA p 159, again our former Court of Appeal said that even in the absence of express statutory provision it is always the duty of the court to ascertain the competence of a child to give evidence; it is not sufficient to ascertain that the child has enough intelligence to justify the reception of the evidence, but also that the child understands the difference between the truth and falsehood. 28. Section (2) of the Children Act 2022 describes a child of tender years as “ a child under the age of 10 years.” 29. The complainant who was eight (8) years old was indeed a child of tender years. I have carefully perused the record of the proceedings before the lower court. Contrary to the claim by the appellant that no Voire dire examination was conducted I note that the trial court did in fact conduct a Voire dire examination on the child before recording her evidence. The record at page 12 paragraph 12 shows that on 4th July 2024 at 10.33am the court examined the child and found the opinion that she was intelligent enough to understand the importance of telling the truth. The answers to the questions which the court put to her were clearly recorded by the court. Finally the trial court at Page 13 paragraph 5 observed as follows:“ I find that despite the child’s young age she understands the need to tell the truth and knows that there are consequences to lying thus I will allow her to give a sworn statement.” 30. I therefore dismiss this ground of the appeal. 31. Having proved the age of the complainant the prosecution needed to tender evidence sufficient to prove the fact that penetration had occurred. Section 2(1) of the Sexual Offences Act 2003 defines penetration as “ The partial or complete insertion of the genital organs of a person into the genital organs of another person.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5378/eng@2026-04-24 6

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32. In her evidence the complainant testified that the appellant defiled her on two occasions. The complainant told the court that the first incident occurred when she was at home and her mother and others were busy moving bags of cement. She states that the appellant who was her cousin dragged her to his house and showed her pornographic images on his phone. In her own words the child stated as follows:“ Muiga took me to his bedroom. He took his phone and asked me if I knew sex. He showed me his phone. I saw a woman leaving the bathroom naked. I also saw a man. He told me sex is bad manners. He removed his clothes and removed my clothes. He inserted his thing that he uses to Kojoa [urinate] in my private part. My private part is the one we should not see. I use my private part to urinate. He told me not to tell anyone and if I did he would cut me using a panga and also he would also throw me in a river to be eaten by fish.” 32. The complainant further stated that the appellant defiled her a second time on 28th April 2023 when her parents were away as her father had taken her mother to the hospital. On that day the child had been left in the care of a neighbour. The appellant again took her to his house showed her pornographic images and defiled her. Regarding this incident the complainant says. “ He [the appellant] told me we would have sex. I started crying. He also took a panga and said he would use it to cut me if I told anyone. He removed my clothes and his clothes and he did sex. He did bad manners. He laid on top of me and he did bad manners. He took his thing of Kukojoa [penis] and inserted it in my private part………..” 32. In both instances the complainant gave a clear and graphic description of what happened to her. Being a child of tender years the complainant obviously lacked the vocabulary to fully describe the sexual act which she referred to as “bad manners”. Similarly though lacking the vocabulary to describe the male and female genitals, the child described the penis as the part “kukojoa” (to urinate) and her vagina as her private parts which nobody should see. The complainant gave clear and consistent evidence and remained unshaken under cross-examination by defence counsel. Given the graphic description of the two instances I find it highly unlikely that the complainant was not telling the truth. 32. The complainant did not initially report the defilement to anyone as she was in fear since the appellant had threatened to cut her up and to throw her body into a river to be eaten by fish. However later on whilst engaged in a guidance and counselling session at her school, the child felt free enough to report the incidences to her teacher. 32. PW4 who was the complainant’s teacher stated that on 21st June 2023, the complainant approached her and informed the teacher that she knew about private parts. The child revealed to her teacher that she had been defiled by her cousin. The teacher then relayed this information to the child’s mother. PW2 who was the complainant’s mother confirmed that the school teacher called her and told her that the complainant had been defiled by a relative. PW2 stated that on 23rd June 2023 as she prepared the complainant for school, the child said that she was experiencing pain in her vagina. 32. Final corroboration on the issue of penetration is provided by the medical evidence. PW3 was a Senior Medical officer attached to PGH - Nyeri. He confirms that the complainant was examined at their facility on 23rd June 2023 PW3 produces the P3 dated 26th June 2023 Pexb 1 which indicated that the complainant had old tears in the hymen. The doctor opined that the child had been subjected to penile penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5378/eng@2026-04-24 7

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32. PW3 also produced the complainants PRC form Pexb 2 in which it was noted that the child appeared fearful when she went to the hospital and it was recommended that the child undergo trauma counselling. 32. It must be remembered that the complainant was taken to hospital days after the defilements and as such she had bathed and washed her clothes so no sampling was possible. The medical evidence has not been controverted. I am satisfied that the evidence of the minor is corroborated by the medical evidence and all provide proof beyond reasonable doubt that penetration had occurred. 32. The final element requiring proof in a case of defilement is the identity of the perpetrator. The complainant herself identified the appellant as the person who had defiled her. The appellant was a cousin to the complainant and lived nearby thus he was a person whom the child knew very well. She even identifies the appellant by his given name ‘Muiga’. The child told the court that her father and appellant’s further were brothers. 32. PW2 who was the complainant’s mother confirmed to the court that the appellant is a nephew to her husband. PW4 the teacher to whom the child reported the incident told the court that the child named the man who had defiled her as ‘Muiga’. 32. The incidences of defilement both occurred during the daytime. The complainant was alone with the appellant in his room for a period of time. She was in close proximity with her assailant and had ample time and opportunity to see him well. I find there was no possibility of a mistaken identity. 32. There is therefore clear evidence of recognition. In the case of Anjononi & Others -vs- Republic [1980] KLR it was held that:“ ……………………recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 32. The child never wavered in her identification of the appellant - he was a relative who lived in the same compound and whom she knew very well. Therefore I am satisfied that there has been a clear positive and reliable identification of the appellant by the complainant. 32. The Appellant in his defence denied the charge and alleged that he had been framed by the parents of the child due to a land dispute. He called his uncle Charles Wahome DW2 who supported this allegation of a land dispute between the appellant and the parents of the complainant. 32. What would a young eight (8) year old child have to do with a land Dispute? Even if the child’s parents were feuding with the appellant over land, what possible motive would this young child have to frame the appellant? Further the teacher PW4 told the court that she did not know the appellant and had never met him before. What possible motive would the teacher have to frame the appellant? Lastly the appellant was not able to explain away the medical evidence which proved that the child had been defiled. Did the doctors also have a grudge against him? 32. The appellant in his grounds of appeal stated that the trial court had failed to consider his defence. This is not true. In her judgment at Page 6 line 22 the learned trial magistrate did consider the defence raised by the appellant but proceeded to dismiss that defence in the following words:“ 20. I note that the accused raised the issue of the grudge even during the crossexamination of the Prosecution witnesses. Be that as it may, I am not persuaded that the alleged grudge between the accused and the Complainant’s father led https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5378/eng@2026-04-24 8

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to the initiation of the charges herein. I say so because, as per the evidence on record, the offence only came to light when PW4 was teaching a guidance and counselling class a few months after the last incident. She was talking to the pupils about private parts when the Complainant and another pupil raised their hands. The Complainant then proceeded to tell her that someone had touched her private part. On further inquiry, the Complainant told her what the accused had done. In my view, if indeed the Complainant was influenced by her father to implicate the accused then she would have done so after the incidents and would not have waited for almost two months. Further, if the charges were baseless, then even the medical examination would not have shown penetration of the complainant’s genitalia……” 32. I do agree that the defence raised by the appellant was not credible and the same was for dismissal. 32. Finally I am satisfied that the prosecution did prove all the elements of the offence of defilement beyond reasonable doubt. The conviction of the appellant by the trial court was sound and I do confirm that conviction. 32. Following his conviction the appellant was accorded an opportunity to mitigate. A pre-sentence report was filed in court on 13th May 2025. On the same day the trial court sentenced the appellant to serve a term of life imprisonment. 32. The appellant had been charged under Section 8(1) as read with Section 8(2) of the Sexual Offences Act Section 8(2) of the said Act provides as follows:“ (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to life imprisonment.” 52. As pointed out by the trial court the law provides for a ‘Mandatory Minimum sentence under the Sexual Offences Act. In Republic -vs- Joshua Gichuki Mwangi Petition No. 18 of 2023 the Supreme Court of Kenya upheld the constitutionality of the minimum mandatory sentences provided for under the Sexual Offences Act. Therefore upon conviction, the trial court has no option but to impose the mandatory minimum sentence provided for by the law in this case being life imprisonment. As such I find that the sentence imposed by trial court is lawful and cannot be impeached. 53. Finally I find no merit in this appeal. The same is dismissed in its entirety. The conviction by the trial court is confirmed and sentenced is upheld. DATED IN NYERI THIS 24TH DAY OF APRIL, 2026. ……………………………. MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5378/eng@2026-04-24 9

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