Kelvin Mungathia v Republic

a. That the learned trial magistrate erred in matters of law and fact by failing to note that the evidence adduced was not sufficient to sustain the conviction. b. That the learned trial magistrate erred in law and facts by failing to note that the key witnesses w ere not called. c. That the learned trial magistrate erred in law and fact s by failing to note that the evidence of clinical officer does not support the testimony of the complainant in this case. d. That the learned trial magistrate erred in law and facts by failing to note that the sentence was harsh and excessive. e. That the learned trial magistrate erred in law and fact s by not observing that the evidence adduced by the prosecution witness were un-collaborating and inconsistence. f. That the learned trial magistrate erred in law and fact by rejecting the appellant defence without giving any cogent reason. Appellant’s Submissions 5. The appellant added more grounds of appeal in his submissions namely: a. That the learned trial magistrate erred in both matters of law and facts by failing to note that the evidence of the clinical officer proved beyond reasonable doubt that the complainant was not defiled. b. That the learned trial magistrate erred in law and fact by failing to note that the evidence adduced before court indicated that it was an attempted ofience, thus the trial magistrate failed to use his powers under section 179(2) of the Criminal Procedure Code. c. That the learned trial magistrate erred in law and fact by failing to note that the prosecution did not prove their case to the required standard of proof since evidence of a broken hymen is not proof of defilement. 6. The appellant submitted that the complainant’s evidence did not disclose that she was penetrated by the appellant. He faulted the trial court for relying on the evidence of the complainant without following the provisions of section 124 of the Evidence Act. Citing Bakare vs State (1985) 2NKR the appellant submitted that the prosecution had failed to meet the legal threshold of proof. 7. The appellant further submitted that the learned magistrate ought to have invoked the provisions of section 179(2) of the Criminal Procedure Code since the evidence could only disclose a lesser ofience. Respondent’s submissions: 8. The respondent submitted that the evidence adduced proved the key ingredients of the ofience. That the appellant detained the complainant for two days before she was rescued. 9. On sentence, the respondent urged the court not to disturb it as the ofience was rampant in this region. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5681/eng@2026-04-23 2

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Analysis and Determination: 10. Being a first appeal, the court’s duty is as was set out in Okeno -Vs- Republic (1972) EA 32 where it was held that: “ 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 the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.” 11. Similarly, in Kamau Njoroge vs Republic [1987] eKLR, the Court of Appeal stated: “ As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect.” 12. With this in mind, I will look at the evidence adduced albeit in a summarised manner in the course of this judgment. 13. As was correctly pointed out by the trial court, the key ingredients constituting an ofience of defilement are: 14. a. Age of the victim, b. Proof of act of penetration, c. Identification of the perpetrator causing the act of penetration. In Dominic Kibet Mwareng vs Republic (2013) eKLR, the court reiterated this when the learned judge noted that: “ The critical ingredients forming the ofience of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.” 15. There is really no dispute as to the age of the complainant. She told the trial court that she was 14 years old at the time of the trial. The complainant’s age was assessed at that age and was duly confirmed by the certificate of birth produced as an exhibit. 16. In addressing the question of penetration, I will look at the evidence adduced. 17. The complainant told the trial court that when her brother called her outside, she met the appellant requested they both went to his house. She stated that she made love with the appellant who also touched her breasts and private parts. 18. The term “making love” must be interpreted in the context of the circumstances. It meant that the appellant and the complainant had sexual intercourse. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5681/eng@2026-04-23 3

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19. The appellant’s submissions on the issue is hinged on the clinician’s finding that the complainant’s hymen was not freshly torn and that there was no conclusion medical evidence of penetration. Penetration is defined at section 2 of the Act as follows: “ ...the partial or complete insertion of the genital organs of a person into the genital organs of another person;" 20. Thus, the legal definition of penetration is not the same as the literal meaning which may connote brutal or forceful entry. 21. The fact that the complainant‘s hymen had been previously torn does not mean that she could not be defiled. Even the slightest entry into her genital organ was sufficient proof of penetration. Even if it was apparently “consensual”, given the age of the complainant, she was incapable of legally giving consent. 22. The trial court duly examined the circumstances under which the alleged ofience took place and noted that the whitish discharge was proof of penetration. 23. While I may not agree with that finding, I am of the view that even without the discharge or other medical examination findings, the trial court could have applied the provisions of section 124 of the Evidence Act which states as follows: Corroboration required in criminal cases 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 ofience, 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 ofience, the only evidence is that of the alleged victim of the ofience, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 24. It is thus clear that under Section 124 of the Evidence Act, a court can convict based on the evidence of the victim alone in sexual ofiences. In this regard am guided by the case of Stephen Nguli Mulili v Republic [2014] eKLR the court of Appeal held; “ with regard to the issues of corroboration and the appellant being proved as the one who defiled the complainant, section 124 of the Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth.” 25. Now, the complainant was found in the appellant’s house, where she had been for two days. She said that she and the appellant made love. In my view, her evidence was consistent and clear that the two had sexual intercourse. Thus, the issue of an attempt at the ofience does not arise as submitted by the appellant. 26. Just like the trial court did and applying section 124 of the Evidence Act, I find the complainant’s evidence credible and I accept it. Therefore, the key ingredient of penetration was proven. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5681/eng@2026-04-23 4

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27. The complainant knew the appellant and she was found in his house. The appellant claims that this was a frame-up. 28. There is the evidence of 3 witnesses who confirm that the girl was found with the appellant, in his house. I find that the defence that was adduced to have been too weak to displace the overwhelming evidence adduced by the prosecution. 29. Therefore, I am satisfied that the appellant was duly identified. 30. On sentence, I find that the same is in line with the Act which provides for a minimum sentence of twenty (20) years imprisonment. 31. In conclusion, the appeal is hereby dismissed. DATED, SIGNED & DELIVERED AT MERU THIS 23RD DAY OF APRIL, 2026. H. M. NYAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5681/eng@2026-04-23 5

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