Peter Gitau Mbugua v Director of Public Prosecution

removed his clothes, and committed “bad manners” from his buttocks. PW1 stated that she had previously seen the same person give her child Kshs. 20/- and had confronted him, to which he replied that the money was for buying a cake. She further testified that AM said he wanted to defecate and upon taking him to the toilet, she noticed he was bleeding and in pain. The child again identified the same person as the perpetrator. 5. PW1 followed the suspect to Kariua after being told he had boarded a motorcycle. She found him in a bar, and the child positively identified him. She called police officers from Kariua, who arrested him. The child was treated at Kigumo Hospital (treatment notes – MFI 1; P3 form – MFI 2; PRC form – MFI 3). The complainant was born on 27th June 2019 (nearly three years old at the time; copy of birth certificate – MFI 4). 6. Under cross-examination by the accused, PW1 maintained that the defilement occurred at around 3:00 pm in a plot with no other people present at the time. She confirmed she had no relationship with the accused and he was not her neighbor, but she used to see him buying avocados in the area. The accused was arrested at the bar around 4:30 pm. On re-examination, PW1 stated the plot had two houses and that the other tenant was not at home at the time of the occurrence. 7. PW2 was AN, the complainant. Following a voire dire examination, the court determined that he was not intelligent enough to give sworn evidence. He gave unsworn evidence and testified that on the material day, he was playing outside when a person came from the shop to where he was playing. That the person did not speak to him but gave him a 10-shilling coin after doing “bad manners” to him on his anus at the stairs. That the person removed his trousers only, then did the bad manners. PW2 identified the accused person in the dock as the one who did this to him. That he then went and told his mother, who later went to the road to look for the person. Under cross-examination by the accused, PW2 stated that there are no shops near their home. He confirmed that he used to see the accused in Mathare-ini and on the road, and that the accused had come to their area. 8. PW3, was Naomi Njeri Muigai, a registered clinical officer at Kigumo Sub-County Hospital, testified that on 26th September 2022, PW2 was brought to the hospital by his mother who reported that the child had been defiled by a person known to him, who was picking avocados in Mathareini area. That the act was committed on the anal area, and the child was bleeding from the anus upon arrival. That upon examination, the victim was not calm. PW1 reported having changed the child's clothing due to bleeding. The anal area exhibited a laceration, perianal erythema, and bruising and diagnosis of defilement was made. Laboratory tests including an anal swab revealed no spermatozoa or cysts. AHB level was 12.9, and an HIV test was non-reactive. She stated that the child was placed on treatment including PEP and STI treatment. PW3 produced the treatment notes, P3 form, and PRC form as exhibits. 9. PW4 was No. 24xxx PC Mercy Ndungu, a police officer attached to Kigumo Police Station. She testified that on 26th September 2022, the complainant, accompanied by his mother reported that AM had been defiled by one Peter Gitau (the accused). That she booked the report and referred them to hospital, where the victim was treated and discharged. She issued a P3 form, which was duly filled, and recorded the mother’s statement since the victim could not speak. PW4 later received information that the suspect had been arrested at Kariua and was being held at Kariua Police Post. The OCS sent officers to collect the accused, who was brought to the station. The victim was then aged 3½ years. PW4 obtained a copy of the birth certificate indicating the victim was born on 27th June 2019, which she produced as Exhibit 4. Later in June of that year, the victim recorded his statement. The accused was arrested on the same day the defilement was committed, as he was trying to flee to Kariua. The victim referred to the accused as “uncle,” indicating he was someone known to him. Under cross-examination https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5559/eng@2026-04-30 2

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by the accused, PW4 confirmed that the accused was not taken to hospital, but that the child identified the accused as the perpetrator and knew him. 10. The court considered the evidence adduced and ruled that the prosecution had made a prima facie case sufficient to warrant the accused persons to be placed on his defence. Defence Case. 11. DW1, Peter Gitau Mbugua, testified in unsworn evidence that on the 25th day of September 2022, he traveled from Kariua to Mathereini at 10:00 am in search of one Nduati. That upon failing to find the said individual, he interacted with two boys at a local bar where he bought them a glass of alcoholic drink before proceeding to Karia-ini to harvest avocados until 1:00 pm. The accused further stated that after returning to Karimi’s establishment for drinks, he boarded a vehicle to Karia and settled at Utalii Bar, where at approximately 3:00 pm, he was purportedly attacked by PW1, in the company of three other individuals. That members of the public intervened until Nelson Githuku summoned officers from Kariua who took him into custody, leading to his transfer to Kigumo Police Station on the 26th day of September 2022 and his subsequent arraignment. That marked the close of the defence case. 12. The trial court convicted and sentenced the accused persons to life imprisonment. The Appeal. 13. Having been dissatisfied by both the conviction and sentence by the trial court, the appellant lodged a petition of appeal dated 16th July 2024 citing the following eleven grounds: a. That, the learned trial Magistrate erred in law and fact in ignoring a cardinal principal in criminal law and procedure that the burden of proof lies on the prosecution and that they must prove each and every ingredient of the charge beyond reasonable doubt. b. That, the learned trial magistrate failed to test the evidence of the prosecution witnesses and caution the circumstances thereby convicting on flimsy, inconsistent and evidence that was not watertight enough; c. That, the learned trial Magistrate erred in law and fact by basing a conviction in relying on the suspicious and fictitious evidence of witnesses. d. That, the learned trial magistrate erred in law and fact by relying on evidence of the prosecution without observing that there were no substantive investigations by the investigating officers thereby basing the conviction on mere allegations and fabrication; e. That, the appellant was not afiorded the services of an advocate at the onset of his trial thus compromising his right to fair trial as provided for in Article 50 2(g and h) taking into consideration that he is illiterate and could not understand matters of law and consequences of taking a guilty plea. f. That, the learned trial magistrate erred in matters of law and facts by not calling for presentencing report as required for by the Judiciary Sentencing Policy Guidelines 2023. g. That, the learned trial magistrate erred on both law and facts by meting a minimum mandatory harsh sentence without considering the appellant plausible mitigation there by contravening Article 50(2) (q) of the constitution. h. That, more grounds to be adduced on the hearing of this appeal once the appellant receives certified typed proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5559/eng@2026-04-30 3

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14. Consequently, the appellant prayed that the appeal be allowed, the conviction quashed and sentence be set aside. 15. The appeal was canvassed by way of written submissions. Appellant’s Case. 16. In his written submissions, the appellant argued that the prosecution failed to prove the charge of defilement beyond reasonable doubt. He submitted that PW2, being a child of very tender years, merely stated that the appellant did “bad manners” to him and did not disclose what was inserted into his anus. It was contended that this omission was fatal to the prosecution case since penile penetration, being a critical ingredient of the ofience, was not specifically established. The appellant further submitted that the evidence of PW1 and PW2 did not clearly establish the scene of the ofience, and that the circumstances described were doubtful, improbable, and incapable of sustaining a safe conviction. 17. The appellant further submitted that the medical evidence did not conclusively connect him to the ofience. He contended that no DNA analysis was conducted, no spermatozoa were detected, his own medical examination was not undertaken, and the clinical officer who testified had not personally examined the complainant. In his view, the medical evidence remained merely opinion evidence and did not prove that the injuries observed were caused by penile penetration as opposed to some other object or accidental injury. He relied on the decisions in Sawe v Republic [2003] eKLR, Fappyton Mutuku Ngui v Republic, John Muthama v Republic, and Francis Ndungu Tweni v Republic, arguing that the essential elements of age, penetration, and identity were not proved to the required standard. 18. On the conduct of the investigations, the appellant submitted that the prosecution case was undermined by evidentiary gaps and poor investigations. He pointed out that PW4 stated that the complainant did not record a statement at the earliest opportunity because he could not speak, yet the trial court referred to a statement allegedly recorded much later. He argued that the said statement was neither availed to him nor properly accounted for, thereby occasioning a miscarriage of justice. He also submitted that no independent witness was called from the alleged scene, notwithstanding evidence that there were other tenants and children in the vicinity, and therefore the case rested on suspicion, hearsay, and uncorroborated assertions. 19. The appellant also challenged the trial court’s treatment of his defence. He submitted that his unsworn defence, which was in the nature of an alibi, was plausible and was not displaced by the prosecution evidence. He maintained that on the material day he had gone to Mathareini in the course of his avocado business, later proceeded to Kariua, and was only attacked by members of the public before being arrested. He faulted the trial court for rejecting that defence without giving cogent reasons, contrary to section 169 of the Criminal Procedure Code, and argued that the burden of proof was improperly shifted to him. 20. On sentence, the appellant submitted that the sentence of life imprisonment was harsh and excessive and was imposed without proper regard to his mitigation, the applicable sentencing principles, and the constitutional demands of a fair trial. He argued that the trial court failed to comply with sections 216, 329, and 333(2) of the Criminal Procedure Code and urged this court to interfere with sentence. In conclusion, he invited this court, as a first appellate court, to re-evaluate the entire evidence afresh in line with Okeno v Republic (1972) EA 32, allow the appeal, quash the conviction, and set aside the sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5559/eng@2026-04-30 4

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Respondent’s Case 21. The respondent opposed the appeal and submitted that the prosecution proved its case against the appellant beyond reasonable doubt. Counsel identified three broad issues arising for determination, namely whether the prosecution proved the charge to the required standard, whether the trial court failed to consider the appellant’s defence, and whether the sentence imposed was harsh and excessive. 22. On proof of the ofience, the respondent submitted that all the essential ingredients of defilement were established. As regards age, it was submitted that the complainant’s birth certificate, produced as an exhibit, showed that he was born on 27th June 2019 and was therefore about three and a half years old at the time of the ofience. On penetration, the respondent relied on the evidence of PW2, who stated that the appellant did “bad manners” to his anus, as well as the testimony of PW1, who found the child crying and bleeding from the anal area, and the medical evidence of PW3, who observed anal bleeding, laceration, perianal erythema, and bruising. It was therefore submitted that the evidence on record sufficiently established penetration within the meaning of section 2 of the Sexual Offences Act. 23. With regard to identification, the respondent submitted that the complainant knew the perpetrator as the “uncle” who had previously given him money and that PW1 had also seen the appellant in the area before. Counsel argued that immediately after the incident, PW1 traced the appellant, and upon seeing him, the complainant identified him. The complainant also identified the appellant in court. The respondent therefore submitted that the identity of the perpetrator was free from doubt and that there was no basis for any suggestion of mistaken identity or fabrication. 24. On the appellant’s defence, the respondent submitted that the trial court did not ignore it but properly considered and rejected it for sound reasons. It was argued that the appellant’s alibi defence was raised as an afterthought, lacked plausibility, and did not dislodge the direct and circumstantial evidence adduced by the prosecution. The respondent consequently urged this court, upon its own analysis of the record, to reach the same conclusion that the defence did not raise any reasonable doubt. 25. As to sentence, the respondent submitted that the sentence imposed was lawful and commensurate with the ofience committed. Counsel drew the court’s attention to the decision of the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR), wherein it was held that the minimum sentences under the Sexual Offences Act do not oust judicial discretion. On that basis, the respondent argued that the authorities relied upon by the appellant on sentence were no longer tenable and urged the court to uphold both the conviction and the sentence. Analysis and Determination. 26. This being first appellate court, it is guided by principles set out by the court of appeal in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the court stated as follows: “ The duty of the first appellate court is to analyze 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5559/eng@2026-04-30 5

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27. I have looked at the grounds of appeal, the submissions filed by the parties, the lower court proceedings and the trial court’s judgment. 28. I isolate the following key issues for determination: i. Whether the prosecution proved the charge of defilement beyond reasonable doubt. ii. Whether the prosecution evidence was inconsistent, insufficient, or founded on inadequate investigations. iii. Whether the appellant’s fair trial rights under Article 50(2)(g) and (h) of the Constitution were violated. iv. Whether the appellant’s defence was considered and whether the burden of proof was shifted to him. v. Whether the sentence imposed was lawful, proper, and merited in the circumstances. 29. The ingredients of the ofience of defilement are now settled. The prosecution must prove the age of the complainant, penetration, and the identity of the perpetrator. In the present case, the complainant’s age was proved by the birth certificate produced as an exhibit, which showed that he was born on 27th June 2019. He was therefore about three and a half years old at the time of the ofience and squarely fell within the age bracket contemplated under section 8(2) of the Sexual Offences Act. 30. On penetration, the appellant argued that PW2 did not expressly state what was inserted into his anus and that absence of spermatozoa, DNA evidence, or medical examination of the appellant created reasonable doubt. I do not agree. The complainant stated that the appellant did “bad manners” to his anus after removing his trousers. PW1 found the child crying, in pain, and bleeding from the anal area immediately thereafter. PW3 examined the child and found anal bleeding, a laceration, perianal erythema and bruising, and formed the opinion that there had been defilement. 31. The absence of spermatozoa or DNA evidence was not fatal. Kenyan courts have consistently held that sexual ofiences may be proved by the evidence of the victim together with surrounding circumstances and medical findings, and that lack of DNA evidence does not, without more, destroy an otherwise cogent prosecution case. In the case of Robert Omeri v Republic [2017] KEHC 2013 (KLR) the court held as follows: “ The Clinical Officer did not find spermatozoa on the victim, this perse cannot rule out defilement as other clear signs were noted.” 32. I am also not persuaded by the submission that because the child did not use precise language, penetration was not proved. A child of such tender years cannot be expected to employ technical terms. The court is required to consider the totality of the evidence. Here, the child’s description of “bad manners” done to his anus, the immediate complaint to his mother, the bleeding observed shortly thereafter, and the medical findings of injury to the anal area all point in one direction. I am satisfied that penetration was proved beyond reasonable doubt. 33. As regards identification, the evidence was equally firm. The complainant referred to the assailant as the “uncle” who had given him money. PW1 testified that she had seen the appellant in the area before and had previously seen him give the child money. She immediately went after him, found him at Kariua, and the child positively identified him. PW2 also identified him in court. This was therefore a case of recognition rather than identification of a stranger, and the possibility of mistaken identity was negligible. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5559/eng@2026-04-30 6

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34. On the complaint that investigations were inadequate because no independent witness was called, the law is clear that no particular number of witnesses is required to prove a fact. The prosecution is only obliged to call such witnesses as are sufficient to establish the charge as per Section 143 of the Evidence Act (Cap 80). Failure to call additional witnesses becomes material only where the evidence on record is barely adequate or where it appears that material evidence was deliberately withheld. Recent decisions have reaffirmed that principle. In the present case, the evidence of PW1, PW2, PW3 and PW4 was sufficient to establish the charge, and no adverse inference arises merely because no neighbour, tenant, or bystander was called. 35. The appellant’s defence was in the nature of an alibi. He claimed that on 25th September 2022, he was in Mathare-ini looking for one Nduati. That he later went to Utalii Bar in Kariua where PW1 and others attacked him. The alibi was raised late and was not corroborated by any witnesses. Moreover, the child positively identified him as the perpetrator. As the Court of Appeal held in Victor Mwendwa Mulinge v Republic [2014] eKLR: “ It is trite law that the burden of proving the falsity, if at all, of an accused's defence of alibi lies on the prosecution; see Karanja vs. R [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused's guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.” 36. Applying that principle here, the appellant never raised his alibi during the trial until he gave his defence, which meant that the prosecution had no opportunity to test its veracity. That lateness, coupled with the strong and consistent prosecution evidence placing him at the scene, leads this court to conclude that the alibi was an afterthought and lacked any probative value. Accordingly, this ground of appeal is dismissed. 37. I now turn to sentence. The complainant was aged three and a half years. Upon conviction under Section 8(1) as read with Section 8(2) of the Sexual Offences Act, the trial court imposed life imprisonment. The appellant argues that the sentence was harsh and that the court treated it as mandatory, relying on Philip Mueke Maingi & 5 others v Republic and Edwin Wachira v Republic. However, the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) decision clarified that Muruatetu did not invalidate the sentencing framework under the Sexual Offences Act and that minimum sentences are distinct from the mandatory death sentence in murder cases as considered in Muruatetu. 38. In the end, I find that each of the appellant’s grounds of appeal fails. 39. Consequently, the appeal against conviction and sentence is hereby dismissed. The conviction is upheld and the sentence of life imprisonment is affirmed. 40. Right of appeal, 14 days explained. DATED, SIGNED AND DELIVERED ONLINE AT KAKAMEGA THIS 30th DAY OF APRIL, 2026. S.N MBUNGI JUDGE In the Presence of:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5559/eng@2026-04-30 7

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CA: Angong’a/Velma Mr. Njoya for DPP present online. Accused present online from Nyeri GK Prison. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5559/eng@2026-04-30 8

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