David Mithika v Republic

6. a. That the learned trial magistrate erred in law and fact by failing to note that the prosecution witnesses gave inconsistent, contradictory and conflicting testimonies. b. That the learned trial magistrate erred in law and fact by failing to note that the experts evidence tendered during trial exonerated the appellant from the allegations of defilement. c. That the trial magistrate flouted in matters of fact and law by convicting the appellant on evidence that lacked the requisite standard of prove of beyond reasonable doubt. d. That the learned trial magistrate erred in both law and fact by rejecting the appellant plausible defence without giving cogent reasons. e. That since he cannot recall all that transpired during the trial he now asks the honourable court to furnish him with the certified court proceedings and judgment to enable him supplement or substitute the drafted grounds of appeal at the hearing. f. That he asks to be present during the hearing of this appeal. The appellant thus sought that his appeal be allowed, the conviction be quashed and the sentence be set aside. Appellant’s Submissions: 7. The appellant submitted that the evidence adduced by the prosecution was not sufficient to warrant the conviction of the appellant as corroboration was deficient, and that the complainant herself had admitted to prior sexual liaisons. That the clinical officer was categorically that she was not unable to conclude whether the penetration took place. That the appellant was also taken to the hospital for check-up but no evidence adduced to connect him with this offence. The trial magistrate indicated on her judgement on page 25 lines10-19 that the complainant had an infection which can be spread through sexual contact. 8. The appellant further submitted that the opinion of the trial magistrate that penetration took place was not correct. That while the trial court believed the testimony of the complainant, it is quite clear that there was doubt as to whether the complainant was actually defiled by the appellant since there was no credible evidence as to the penetration of the complainant. That it is trite that those doubts ought to have been resolved in favour of the Appellant. 9. It was further submitted that the learned trial magistrate failed to take into consideration the defence of the appellant. That the burden of proof, subject to section 111 of the Evidence Act, rested with the prosecution throughout. The appellant was entitled, for example, to remain mute, a safeguard granted to an accused person by section 211(1) of the Criminal Procedure Code. The appellant cited Amber May v Republic [1976-80] 1 KLR 1118 and Johnson Muiruri v Republic [1983] KLR 445. 10. On sentence, the appellant submitted that the complainant was in her age bracket of 15 years which the trial magistrate ignored and she sentenced the appellant to serve a sentence of 30 years’ imprisonment which is harsh and excessive instead of 20 years. Respondent’s Submissions: 11. The respondent submitted that the ingredients of the offence were well established before the trial court, that is the victim’s age. Part of the Act of penetration and the identification of the perpetrator on sentence, the respondent urged the court not to disturb it as the offence is rampant in this region hence the need for a deterrent sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5710/eng@2026-04-23 2

page 2 of 5

Analysis and Determination 12. 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.” 13. 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.” 14. 15. The key ingredients of the offence of defilement are: a. Age of the victim b. Proof of penetration c. Identity of the perpetrator In Dominic Kibet Mwareng vs Republic Criminal Appeal No. 155 of 2011, the court reiterated this and the learned judge noted that: “ The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.” 16. It is with this in mind that I will revisit at the evidence adduced. I will refer to the relevant parts in brief in the course of this judgment. 17. The complainant (PW1) told the trial court that she was from school on the way home, she got pressed and entered a nearby farm to relieve herself. She had barely finished doing so when the appellant appeared. He forcefully lay her on the ground and gagged her with his hands. He then proceeded to insert his penis into her vagina and when he was through he rose and fled. The complainant went home and informed her grandmother. She was taken to the police station and then to hospital where she was examined and prescribed with drugs/medication to prevent HIV and STI infections and pregnancy. Later the appellant was arrested and charged. 18. The clinician ((PW3) produced the medical notes and reports which I will revisit shortly. 19. In his defence, the appellant stated that the case was a frame up due to a land dispute between his family and the complainant’s father. 20. Proof of age in this case is not in dispute. The complainant stated that she was fifteen years old. This was confirmed by the age assessment report produced by the Doctor. 21. The appellant submitted extensively on the issue of penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5710/eng@2026-04-23 3

page 3 of 5

22. The act of penetration is defined under the Act at section 2 as follows: “ penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 23. It is important to note that the legal definition of the said term is not equal to the common/literal meaning which may mean brutal or forceful entry. Even the slightest touch or partial penetration is sufficient. 24. Therefore, the fact that the clinical officer did not find evidence of sexual penetration does not vitiate the complainant’s evidence. 25. The trial court, faced with the said evidence, relied on the fact that the complainant had an infection that it found to be associated with the alleged offence. In my view, that analogy was erroneous since the appellant was not found to have such an infection. 26. In my view the evidence adduced called for the court to consider it under section 124 of the Evidence Act which states as follows: 124. 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 offence, 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 offence the only evidence is that of the alleged victim of the offence, 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. 27. Therefore, under the proviso above, a court can convict based on the evidence of the victim alone. This position has been confirmed by the superior courts. For instance, in 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.” 28. That position was also reaffirmed in the case of JWA Vs Republic [2014] eKLR where the same court observed as follows: “ 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.” 29. I have carefully examined the victim’s evidence, which was very consistent and detailed as to the events of the day. Immediately after the incident, the complainant went home and told her grandmother https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5710/eng@2026-04-23 4

page 4 of 5

(PW2) what had just transpired. I don’t see any ground to found the evidence as a frame up. The complainant acted in a manner consistent with a victim and she alerted her grandmother immediately after the act. 30. Therefore, despite the uncertainty by the clinical officer as to penetration, I find that the victim proved that the appellant committed the act. 31. As to the identity of the appellant, he was well known to the victim. The incident took place during the day when conditions were ideal for identification and recognition. The victim disclosed the identity of the perpetrator immediately she got home. 32. I find that the appellant was duly identified. 33. The defence of the appellant is that he was framed. As I stated, the victim’s testimony dispels that notion completely. The complainant’s father, who is said to have had a land case with the appellant, never features anywhere. It is her grandparents who were her guardians, who took up the matter when informed of the incident. 34. Just like the trial court did, I find the defence case did not do much to rebut the evidence regarding the act complained of. 35. Therefore, I uphold the appellant’s conviction. 36. On sentence, section 8(3) of the Act provides as follows: 3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 37. In Republic vs Joshua Gichuki Mwangi (2024) eKLR the Supreme Court addressed the issues of minimum sentences with finality. It held that a minimum sentence is minimum. Therefore, the trial court, for reasons to be given is at liberty to mete on a longer sentence. 38. Sentencing was at the discretion of the trial court, provided it observed the minimum sentence. The trial court duly noted the circumstances of the case. 39. This court can only interfere with such sentence if there was an error in principle or if it was harsh and excessive. 40. In my view, sexual violence towards children should not be taken lightly. In setting stiff sentences, the Sexual Offences Act was mindful of the effect of such acts on a vulnerable section of the society. 41. I find that the sentence was sound and I uphold it. 42. In conclusion this appeal is dismissed. DATED, SIGNED & DELIVERED AT MERU THIS 23RD DAY OF APRIL, 2026. ……………… H. M. NYAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5710/eng@2026-04-23 5

page 5 of 5