Edward Mathembe Mutua v Republic

had bruises on the walls of her vagina but the hymen was not torn. She also had a whitish discharge. He produced a P3 Form and a PRC (Post Rape Care) Form in evidence. The prosecution also produced the victim’s certificate of birth. 3. When the court placed the appellant on his defence he maintained his plea of not guilty and stated that the charges were fabricated. He contended that he was framed for not giving food to the victim and her mother. 4. Upon evaluating the evidence from both sides the learned magistrate, found the appellant guilty and convicted him and subsequently sentenced him to imprisonment for a term of 24 years. 5. This appeal is against the conviction as well as the sentence. The grounds of appeal are: 6. “ (1) That the trial magistrate erred in law and facts by failing to note that the Supreme law of the land has been incurably violated by failure to promptly inform all the rights of an arrested person (the Miranda Rights), disclose ALL intrinsic evidence and provide legal representation/aid. (2) That the trial magistrate erred in law and facts by failing to note that the charge sheet was incurably defective by failure to adhere to the law on clear drafting of charges against an arrested person, disclose the particular statement of the offence and provide clear particulars on the same. (3) That the trial magistrate erred in law and facts by failing to note that the medical evidence relied upon was inconclusive and illegally obtained contrary to the Exclusionary Rule Article 50(4) of the Constitution. (4) That the trial magistrate erred in law and facts by failing to consider vital features of the case, appreciating scrutiny which was not free from care and caution hence failure to deliberate the evidence objectively and dispassionately which gravely violated Section 107 of the Evidence Act. (5) That the trial magistrate erred in law and facts by failing to note that incredible witnesses were relied upon contrary to section 144 and 150 of the CPC and crucial witnesses were not availed for testimony and cross – examination contrary to Section 146 (iv) of the Evidence Act; Cap 80 Laws of Kenya. (6) That the trial magistrate erred in law and facts by disregarding the defence statement which was plausible, yet the same was remarkably comprehensive in casting considerable doubt to the strength of the prosecution case and thus failed or fully violated the stipulation in Section 169(i) & 212 of the CPC Cap 75 Laws of Kenya. (7) That the trial magistrate erred in law and facts by appreciating the sentence of twenty four years meted upon the appellant without prompting the spirit of fairness and constitutionalism (Article 27, 50 (2) (p) of the Constitution and section 26 (2) of the Penal Code), yet the same has overridden the proportional legal tenets of punishment thus does not achieve the objectives intended in the SOA No.3 of 2006 and goes against the new developments in matters law.” The prosecution vehemently opposed this appeal. The same was canvassed through written submissions. The appellant acted in person while the state was represented by Prosecution Counsel, Miss Nyauncho. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5887/eng@2026-04-30 2

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7. In his submissions the Appellant has poked holes in the evidence of the prosecution witnesses and contends that it fell far short of proving the charge against him beyond reasonable doubt. He has urged this court to find that the conviction went against the weight of the evidence which he describes as inconsistent and contradictory. He also contends that his defence was ignored. He impugns the sentence for being excessive given that as a first offender he was entitled to the least severe punishment. 8. By the time of writing this judgment the Respondent had not filed any submissions. Analysis and Determination 9. As the first appellate court, I am enjoined to reconsider and evaluate the evidence in the court below so as to arrive at my own independent conclusion albeit bearing in mind that I did not see or hear the witnesses as did the trial magistrate – see the case of Okeno v Republic [1972] EA page 32. 10. In this case the appellant has succinctly summed up the ingredients of the offence of defilement, in his submissions. The said ingredients are that the victim is a child and her age for purposes of the sentence, penetration and the identification of the accused as the perpetrator. 11. In this case, a birth certificate which proved the victim was thirteen years was tendered in evidence. That she was a child and her age are not in doubt and were not in any event disputed. 12. In regard to penetration, the appellant submitted that the evidence adduced was contradictory and inconsistent. That the victim’s evidence was at variance with that of her mother and that the medical evidence adduced, apart from not proving the offence did not connect him to the offence. I have carefully considered the evidence, by both the prosecution and the appellant, the submissions, the cases cited by the appellant and the law. 13. Unlike in the case of Henry and Mining v Republic Cr. Ap No. 59 of 2011 CR AP Rep 150 where it was held that it is dangerous to convict for a sexual offence on the evidence of the girl or woman our law - see proviso to Section 124, stipulates that in sexual offences, a court can convict on the evidence of the alleged victim alone provided it is satisfied that the alleged victim is telling the truth. The case cited by the appellant therefore has no place in our law as all the court below needed to do was to consider whether the victim was a truthful witness and to give its reasons in writing. 14. Having carefully considered the testimony of the victim and weighing it against that of the appellant, I was satisfied that she was speaking the truth. She was very clear and express on what transpired on that fateful evening. She was not inconsistent at all. She had gone to untie their goats when the appellant called her to go get something from his house. He got hold of her and having tied her mouth with a piece of cloth he led her to his house which had a bed and defiled her. Her description of what he did clearly points to penetration hence the reason I state that he defiled her. It is my finding that by stating that she did not know the appellant she meant that although she used to see him she did not know his name and had not related with him before. However, she knew him well, a fact to which the appellant alluded by his claim that he had encountered her and her mother before. He also accusing the victim of having an affair with an employee of her mother, all these facts disclose that the appellant knew the victim. He must also have been known to her as he was staying about 100 meters from their home. 15. It is instructive that when it comes to the offence of defilement, the character of the victim is never an issue. It matters not whether she was going there for more money meaning she had had sexual relations with other men, or that she was having an affair with another boy. The law is that a child is incapable of giving consent to a sexual act and anybody who defiles her is guilty of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5887/eng@2026-04-30 3

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16. As I have stated this court believed the victim. Her evidence was not only consistent and credible but it was also corroborated by the medical evidence adduced by clinical officer who examined her a few hours following the incident. He stated that her inner wear had a black stain; that she had a whitish discharge in her genitalia and that she had bruises on the walls of her vagina. I have avoided stating that the clinical officer also stated that her hymen was torn because it is now trite that a torn hymen is not proof of defilement as it can be caused by various things. The bruises in the walls of the vagina and the discharge are significant. It is not correct as submitted by the appellant that the clinical officer contradicted himself. A closer reading of the P3 form shows that what he referred to as not being torn was the underwear but not the hymen as submitted by the appellant. This is stated in Section “A” paragraph 1 where he states: “ state of clothing including presence of tears, stains (wet or dry) blood etc. “The inner wear is stained with dark stain, not torn/blood stain” 17. It is my finding that although the evidence of the victim does not require corroboration - again see proviso to Section 124 of the Evidence Act – that of the victim here is corroborated even by the medical evidence. I am not persuaded that the mother’s evidence is fatal. In my view that evidence only fortifies that of the victim by showing that she is a reliable and credible witness in that she reported the matter to her mother immediately she got home. This despite being threatened by the appellant. It also goes to show that she was very sure of the identity of the perpetrator because she led the team straight to the appellant’s house but not to any other. His allegation that he was framed because he refused to give the victim and her mother food is not borne by evidence and is not convincing at all. This is given that he was but a casual worker in that area and they were residents and in any event that was never put to the victim and her mother in cross examination and hence was an afterthought. 18. I am not persuaded that the cases cited by the appellant come to his aid. Firstly, this was not a case of dock identification but of recognition as the appellant was familiar to the victim as they were living in the same neighbourhood. It was in the evening, a time which was conducive to a safe identification. Secondly, there is nothing in the evidence to suggest that the victim was mistaken as to the identity of the person who defiled her. She knew who it was and hence reported him to her mother and he was apprehended forthwith. Thirdly, I have considered his defence and weighed it against the evidence of the prosecution witnesses but I did not find it convincing. In my view it does not cast any doubt on the evidence of the victim as would entitle him to the benefit of doubt. Fourthly, the trial court did not shift the burden of proof to the appellant and this court has not done it either and lastly the charge was proved beyond reasonable doubt as is required by law. 19. As for the sentence an appellate court can only interfere with it if it is shown to be illegal or excessive see the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR). In this case the sentence imposed was within the limit prescribed by the law and I see nothing to warrant this court to interfere as the learned magistrate took everything into account including the period the appellant had stayed in remand custody. 20. The upshot is that the appeal has no merit and is dismissed in its entirety. The conviction and sentence of the lower court are upheld. It is so ordered. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF APRIL 2026. E. N. MAINA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5887/eng@2026-04-30 4

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JUDGE In the presence of: Appellant in person No appearance for the State Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5887/eng@2026-04-30 5

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