Christopher Kamau Muthoni v Director of Public Prosecution

a man had removed her clothes and done “bad manners” to her. PW1 then reported the matter at Kigumo Police Station, after which the complainant was taken to Kigumo Hospital for examination and treatment. PW1 further testified that while returning from hospital, the complainant pointed out a man standing at Kwa Njua stage as the person who had assaulted her. On the following day, PW1 went with the complainant to the appellant’s home, and upon seeing him, the complainant again identified him as the assailant. PW1 thereafter made a further report to the police. She also produced treatment notes, the P3 form and an age assessment report. 5. PW2 was DNW, the complainant’s father. He testified that on the material day he learnt that his daughter had been defiled, whereupon he proceeded to Kigumo Police Station and later to Kigumo Hospital. He found that the complainant had already been examined and treated. He stated that investigations later commenced after the complainant identified the person who had assaulted her. 6. PW3 was JNN, the complainant. After a voire dire examination, the trial court found that she understood the duty of telling the truth and allowed her to testify on affirmation. She testified that on the material day, while walking home from school at about 4.00 p.m., she met the appellant, who called out to her and chased her when she attempted to run away. She stated that after she fell down, the appellant caught up with her, took her into a bush, covered her mouth, removed her underpants and stockings, and did “bad manners” to her using his private parts on her private parts. She added that after the incident, the appellant smeared a sticky substance around her mouth and warned her against reporting the matter. She further testified that she later saw the appellant at a stage and pointed him out to her mother as the person who had assaulted her. She also identified him again the following day at his home. In court, she identified the appellant as the perpetrator. 7. PW4 was DNM. He testified that on 7th February 2022, while working in his shamba, he saw a small girl and a young man leave the road and head towards tea bushes. He noted that the young man was wearing a pink marvin. Shortly thereafter, he heard a child screaming and moved towards the area. He then met the child and her mother, and the child reported that someone had held her and done “bad manners” to her. PW4 stated that although he was unable to identify the young man he had seen from the distance, his evidence placed the complainant in the the company of a male person at the material time and place. 8. PW5 was James Mwangi Ngatia, a clinical officer attached to Kigumo Sub-County Hospital. He testified that he examined the complainant on 8th February 2022 following a referral by the police. On examination, he noted that the complainant’s undergarment was wet, that she had not bathed, and that there was a whitish discharge on the perineum, fresh bruises on the right labia majora, and a freshly broken hymen. Laboratory tests revealed epithelial cells but no spermatozoa. His conclusion was that there was evidence of recent penetration. He filled the P3 form and produced it together with the treatment notes. On cross-examination, he confirmed that no spermatozoa were found and stated that he did not know or see the accused personally. 9. PW6 was Police Constable Fredrick Ovumoi of Kigumo Police Station. He testified that a report of defilement was made on 7th February 2022 at 5.58 p.m. He stated that the matter had initially been handled by another officer before being handed over to him upon her transfer. He recorded statements from the complainant and her mother, and the complainant was escorted to hospital where defilement was confirmed. He further testified that about two weeks later, the complainant’s mother reported that her daughter had spotted the perpetrator at Mariira Shopping Centre. The police accompanied them to the scene, where the complainant identified the appellant, who was then arrested. He also produced the complainant’s birth certificate and age assessment report. On cross-examination, he maintained that the complainant had positively identified the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 2

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10. That marked the close of the prosecution case. Having considered the evidence adduced, the trial court held that a prima facie case had been established against the accused person and he was accordingly put on his defence. Defence Case 11. The appellant elected to give an unsworn statement in his defence. He denied the charge in its entirety and contended that the case against him had been fabricated owing to a long-standing grudge between his family and that of the complainant, particularly the complainant’s mother. He stated that the dispute arose from prior disagreements and insults exchanged between the two families. He further alleged that the complainant’s mother sought Kshs. 100,000 from his mother in order to withdraw the case and had also attempted to influence a potential defence witness by promising to share the said sum if payment was made. He maintained that he had committed no offence and urged the court to acquit him. 12. DW2 was MW, DW1’s mother. She testified that on 9th February 2022, the complainant’s mother went to her home and informed her that she was proceeding to Kigumo to report that Christopher had defiled her daughter. She further stated that, prior to that report, she had approached Christopher and offered him employment at a monthly salary of Kshs. 10,000. According to her, Christopher denied the allegations when she later inquired from him about them. 13. That marked the close of the defence case. Upon considering the entire evidence placed before it, the trial court, in its judgment delivered on 23rd June 2022, found the appellant guilty, convicted him, and sentenced him to 20 years in prison. The Appeal 14. Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal vide a memorandum of appeal dated citing the following grounds:(memorandum of appeal not in file) That the learned trial magistrate….. 15. The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 16.07.2025 and submissions dated 16.12.2025 filed by the respondent; both of which this court has carefully considered. Appellant’s Submissions 16. In his written submissions, the appellant raised supplementary/amended grounds of appeal as follows: a. That, the learned trial violated his constitutional rights as a minor in conflict with the law under Article 53 (f) of the Constitution of Kenya (2010) as read with Section 26 (8) of the Children Act through failing to provide him with the services of an advocate at state expense in contravention of Section 26 (8) of the Children Act. b. That, the learned trial magistrate erred in matters of law and fact by failing to find that he was not properly identified as the perpetrator of the offences(s) charged. c. That, the learned trial magistrate erred in matters of law and fact by basing his conviction on the single uncorroborated evidence of PW3 in relation to identification. d. That, the learned trial magistrate erred in matters of law and fact by failing to find that the accused person's (appellant herein) objective conduct was inconsistent with a guilty mind. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 3

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e. That, the learned trial magistrate erred in matters of law and fact by failing to consider the evidence of an existing grudge, improperly dismissing that same as an afterthought. f. That, the 20 years imprisonment sentence is unlawful, harsh and inappropriate under the unique circumstances of the case for reasons of: i. Violation of my constitutional right under Article 53 (1) (P) (i) of the Constitution of Kenya (2010). ii. Violation of my constitutional right under Article 53 (2) of the Constitution of Kenya (2010). iii. Contravention of Section 8(7) of the Sexual Offences Act 17. On the first issue, the appellant submitted that at the time of the alleged offence and during the trial he was a minor, and that the record itself showed that an age assessment had been ordered because he was suspected to be a child. He argued that no age assessment report was ever placed on record and that, instead, the trial court relied on what he termed an unauthenticated child dedication certificate to treat him as being seventeen years old. He further contended that, despite the court being aware or having reason to suspect that he was a child, he was not afforded legal representation at state expense, contrary to Section 26(8) of the Children Act. 18. The appellant further argued that his rights as a child offender were violated because he was committed to an adult penal institution, contrary to Article 53 of the Constitution, Article 37(c) of the United Nations Convention on the Rights of the Child, and Section 26(2) of the Children Act. He also faulted the trial court for failing to conduct further inquiry into his age and for not calling for a pre-sentence report, which, in his view, would have assisted the court in determining his true age before sentence was passed. 19. In support of the foregoing argument, the appellant relied on P O O (A Minor) v Director of Public Prosecutions & another [2017] eKLR for the proposition that where an accused person is a minor, failure to provide legal representation may occasion substantial injustice. He also referred to The Queen on the application of HC (a child by his litigation friend CC) v Secretary of State for the Home Department & Commissioner of Police of the Metropolis [2013] EWHC 982 (Admin), as cited in the former decision, for the proposition that the criminal process must take into account the age, maturity and emotional capacity of a child accused person. 20. On identification, the appellant submitted that he was not properly identified as the perpetrator. He argued that the complainant expressly stated that she had not known him before the incident and that the alleged subsequent identification was therefore susceptible to error. He further argued that the prosecution narrative rested in part on the appellant’s alleged wearing of a pink marvin, which he described as an ordinary item of clothing incapable, by itself, of singling out one individual. He faulted the prosecution for failing to conduct an identification parade and maintained that, in the circumstances, the possibility of mistaken identity could not be ruled out. 21. The appellant further submitted that the conviction was improperly founded on the evidence of a single witness, namely the complainant, in relation to identification. Referring to Section 124 of the Evidence Act, he argued that although a court may convict on the sole evidence of a complainant in sexual offences, it must do so cautiously and only after recording reasons for believing that witness. It was his case that the trial court failed to properly interrogate the complainant’s credibility and wrongly treated other evidence as corroborative of identification when, in his view, such evidence only related to the fact that the complainant later pointed him out. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 4

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22. In that regard, the appellant argued that there were material inconsistencies in the evidence of PW1, PW3 and PW4 which, according to him, undermined the complainant’s credibility. He pointed in particular to the differing accounts as to how the complainant came from the bushes, whether she was crying when first met by her mother, and whether the events described by the complainant were consistent with what PW4 said he observed. On that basis, he urged the court to find that the complainant was not a credible witness and that her testimony on identification was unsafe to found a conviction. He cited Fappyton Mutuku Ngui v Republic [2012] eKLR as authority for the need to exercise caution when dealing with the evidence of children. 23. The appellant also submitted that his conduct was inconsistent with a guilty mind. He argued that although the complainant and her mother allegedly went to his home the day after the incident and confronted him with the allegations, he was not arrested immediately but only much later, and there was no evidence that he had fled from the area. He further contended that there existed a long-standing grudge between his family and that of the complainant, especially arising from disputes between his father and the complainant’s mother, and that the trial court erred in dismissing that line of defence as an afterthought. 24. On sentence, the appellant submitted that the term of twenty (20) years’ imprisonment was unlawful, harsh and inappropriate. He argued that, if indeed he was a minor, Article 53 of the Constitution required that he be treated in a manner that accords with the best interests of the child and that detention be for the shortest appropriate period. He further relied on section 8(7) of the Sexual Offences Act, together with sections 5 and 6 of the Borstal Institutions Act, to argue that a young offender should have been dealt with under the child justice framework rather than being sentenced to a lengthy term of imprisonment. He accordingly urged the court to allow the appeal, quash the conviction, and set aside the sentence. Respondent’s Submissions 25. According to the respondent, the central issues on appeal were whether the elements of the offence were proved, whether the appellant’s defence was considered, and whether the sentence was lawful and excessive. 26. On the merits, the respondent submitted that the prosecution proved all the essential ingredients of the offence, namely the age of the complainant, penetration, and the identity of the perpetrator. It was argued that age was proved by the evidence of the complainant’s mother and by the birth certificate produced in evidence. On penetration, the respondent relied on both the complainant’s testimony and the medical evidence showing bruising to the right labia majora and a freshly broken hymen. On identification, the respondent argued that this was a case of recognition rather than mere identification and cited Reuben Taabu Anjononi & 2 Others v Republic [1980] eKLR for the proposition that recognition is more reliable than identification of a stranger. The respondent therefore urged the court to find that the offence was proved beyond reasonable doubt. 27. Regarding the defence, the respondent submitted that the trial court did in fact consider the appellant’s defence and properly rejected it as a sham and an afterthought. 28. On sentence, the respondent submitted that the sentence of twenty (20) years’ imprisonment was lawful under section 8 of the Sexual Offences Act and ought not to be disturbed. In answer to the appellant’s argument that the sentence was unlawful, the respondent relied on Republic v Joshua Gichuki Mwangi, Supreme Court Petition No. E018 of 2023, and argued that mandatory minimum sentences are lawful. The respondent thus urged this court to find the appeal devoid of merit and to dismiss it in its entirety. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 5

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Analysis and Determination 29. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR where the Court of Appeal held that: “ 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 conclusion on that evidence without overlooking the conclusion 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 conclusion as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided 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. I have considered the lower court proceedings, the judgment of the trial court, the grounds of appeal, and the submissions filed by the parties. In my view, the issues that fall for determination are: i. Whether the prosecution proved the offence of defilement against the appellant beyond reasonable doubt ii. Whether the sentence of 20 years' imprisonment was lawful and appropriate. iii. Whether the Appellant was accorded a fair trial. Issue I : Whether the prosecution proved the offence of defilement against the appellant beyond reasonable doubt 31. The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides: “ 8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 32. 33. The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: i. Age of the complainant ii. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act iii. Positive identification of the assailant. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 6

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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 34. The age of the complainant was proved through the testimony of her mother (PW1) and the production of her birth certificate. The birth certificate showed that the complainant was born on 15th May 2013. On 7th February 2022, she was 8 years, 8 months. This evidence was uncontroverted. 35. The Court of Appeal in Kaingu Elias Kasomo v Republic [2013] eKLR held that age can be proved by the evidence of the child's parent or guardian, by the child's birth certificate, or by medical evidence. In this case, all three forms of proof were available and properly adduced. I therefore find that the complainant's age was proved beyond reasonable doubt 36. On the second ingredient of penetration, penetration is defined under Section 2 of the Sexual Offences Act as: “ the partial or complete insertion of the genital organs of a person into the genital organs of another person." 37. The complainant (PW3) gave a detailed account of how the appellant removed her underpants and stockings and did "bad manners" to her using his private parts on her private parts. This testimony, standing alone, is sufficient proof of penetration. Under the proviso of Section 124 of the Evidence Act, a court may convict on the uncorroborated evidence of a child in sexual offences if the court records reasons for believing the child. In addition, the medical evidence from PW5 corroborated the complainant's testimony. The clinical officer found fresh bruises on the right labia majora and a freshly broken hymen. He concluded that there was evidence of recent penetration. 38. On identification, I agree with the appellant that, on the evidence as summarized, this was not strictly a case of recognition because the complainant stated that she had not known the appellant before the incident. The respondent’s reliance on recognition was therefore misplaced. Nevertheless, the law does not prohibit conviction on visual identification by a single witness; it requires the court to examine such evidence with the greatest care, especially where the witness is a child. That is the caution stated in Wamunga v Republic (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR) thus: “ It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction." 39. Applying that caution to the present case, I am satisfied that the circumstances for identification were favorable. The incident occurred at about 4.00 p.m. or thereabouts, in broad daylight. The complainant was in close physical contact with her assailant as he chased her, caught her, took her into the bush, removed her clothes and assaulted her. This was not a fleeting glimpse in difficult conditions. Further, her account did not stand in isolation. She made an immediate complaint to PW1. She later pointed out the appellant at the stage and she identified him again at his home; PW3 further identified him in court. 40. I have also considered the inconsistencies highlighted by the appellant, including the exact sequence in which PW1 met the complainant, whether she was crying at that precise moment, and the timing of the sightings that eventually led to the appellant’s arrest. In my view, those discrepancies were not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 7

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on the essential ingredients of the charge. The consistent thread in the prosecution case was that the complainant was sexually assaulted that afternoon; she promptly reported the matter; she later pointed out the appellant on more than one occasion; and medical examination confirmed recent penetration. Those variations were peripheral and did not weaken the substance of the prosecution case. I therefore find that this defence by the appellant fails since the prosecution proved its case beyond reasonable doubt. 41. I have also considered the defence that the case was actuated by a grudge between the two families and that money was allegedly demanded in order to withdraw the complaint. That defence was not supported by any independent evidence. More importantly, it did not satisfactorily explain away the complainant’s detailed account, her repeated identification of the appellant, or the medical findings showing fresh genital injury consistent with recent sexual assault. In my view, the alleged grudge did not raise a reasonable doubt. 42. Having found that the prosecution proved the offence of defilement beyond reasonable doubt. The evidence on the age of the complainant, penetration, and the identity of the perpetrator was cogent and consistent. I accordingly uphold the conviction. 43. On the complaint that the appellant’s constitutional rights as a youthful offender were violated, I agree that where it appears that an accused person may be under the age of eighteen years, the court is under a duty to make due inquiry as to age. That obligation was expressly provided for under section 143(1) of the former Children Act, 2001, which required the court to ascertain age where a person brought before it was alleged to be a child. Further, Article 53(2) of the Constitution commands that a child’s best interests are of paramount importance in every matter concerning the child, while Article 53(1)(f) guarantees that a child shall not be detained except as a measure of last resort and, when detained, shall be held for the shortest appropriate period of time and separately from adults. The former Children Act reinforced those protections: section 186 guaranteed a child accused of an offence legal representation and other assistance; section 190 prohibited the imprisonment of a child; and section 191 set out the lawful methods by which a child offender could be dealt with upon conviction. 44. I also accept that the right to be informed of legal representation and, where substantial injustice would otherwise result, to have counsel assigned at State expense, forms part of the fair trial guarantees. The Court of Appeal in POO (A Minor) v Director of Public Prosecutions & another (Constitutional Petition 1 of 2017) [2017] KEHC 8341 (KLR) emphasized the importance of those safeguards where a child is in conflict with the law. To that extent, the trial court ought to have been more meticulous both in settling the question of age and in expressly drawing the appellant’s attention to his right to legal representation. That omission was an irregularity. 45. That, however, is not the end of the matter. Under section 382 of the Criminal Procedure Code, a conviction is not to be reversed on account of an error or irregularity unless it occasioned a failure of justice. In JO v Republic (Criminal Appeal E115 of 2021) [2023] KEHC 18738 (KLR) (Crim) (18 May 2023),, even after finding that the trial court had violated a youthful offender’s fair trial rights by failing to inform him of the right to legal representation, the court still proceeded to consider whether the conviction should stand in light of the strength of the evidence and the interests of justice. 46. In the present appeal, I am not persuaded that the omission complained of occasioned a miscarriage of justice on the question of guilt. The evidence against the appellant was overwhelming. The complainant’s account was clear, prompt complaint was made, and the medical evidence confirmed recent penetration. In those circumstances, I find that the conviction was lawful and safe notwithstanding the procedural lapse complained of. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 8

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Issue II: Whether the sentence of 20 years' imprisonment was lawful and appropriate. 47. I now turn to sentence. The complainant was only 8 years old. Section 8(2) of the Sexual Offences Act prescribes life imprisonment where the victim is aged eleven years or less. At the same time, section 8(7) recognizes that where the offender is below the age of eighteen years, the court may sentence such offender in accordance with the Borstal Institutions Act and the Children Act. Under the former Children Act, a child could not be sentenced to imprisonment, but an offender who had attained the age of sixteen years could be dealt with under borstal legislation and, where appropriate, in any other lawful manner. 48. The jurisprudence of the superior courts has acknowledged the difficulty that arises where a person committed a serious offence while below eighteen years but has since attained majority. In JKK v Republic (Criminal Appeal 54 of 2019) [2023] KEHC 2101 (KLR)the Court of Appeal held that where such an offender had attained the age of sixteen years and the offence was grave, a custodial sentence could properly be imposed so that the offender bears the weight and responsibility of his conduct. The court held thus: “ The dilemma we face in this appeal was the ascertainment of the age of the appellant. Going by the remarks by the Judge, he was about 17 years when he was first arraigned in court in March, 2009, it is now four years later, which means he is now over the age of 18 years, therefore, he is not suitable to be subjected to any of the sentences provided for under the Children Act. The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, ie any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest. A death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his omission or lack of judgment, by serving a custodial sentence. Weare of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes, which can only happen after serving a custodial sentence.” 49. The same reasoning was followed in JOO v Republic (Criminal Appeal E056 of 2023) [2025] KEHC 15618 (KLR) and, more recently, in Kimani v Republic (Criminal Appeal 51 of 2017) [2024] KECA 1080 (KLR), where the Court of Appeal upheld conviction and imposed a custodial term of twenty years, emphasizing that youth does not erase the gravity and consequences of a heinous offence. 50. I have further taken into account that the trial court did not impose the life sentence provided under section 8(2), but instead imposed a term of twenty (20) years’ imprisonment. In my view, that sentence reflected consideration of the appellant’s youth while still recognizing the seriousness of the offence, the tender age of the complainant, the trauma inherent in such an act, and the need for punishment, deterrence, and rehabilitation. 51. It is settled that an appellate court will not interfere with sentence unless the sentencing court acted on a wrong principle, overlooked a material factor, or imposed a sentence that is manifestly excessive in the circumstances. I discern no such error here. The court, in exercising its discretion, sentenced the appellant to twenty (20) years’ imprisonment instead of the minimum mandatory sentence accorded https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 9

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by law; which to me, was commensurate with the appellant’s culpability and the gravity of the offence. I shall not interfere with it. 52. In the result, the appeal on both conviction and sentence is without merit. The conviction is hereby upheld and the sentence of twenty (20) years’ imprisonment is affirmed. 53. Right of appeal, fourteen (14) days. DATED, SIGNED AND DELIVERED ONLINE AT KAKAMEGA THIS 30TH DAY OF APRIL, 2026. S.N MBUNGI JUDGE In the Presence of:CA: Velma/Angong’a Mr. Ndege for ODPP present. Accused present online from Nyeri G. K Prison. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5700/eng@2026-04-30 10

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