Stanley Kyalo Mutuku v Republic

(3) That the learned trial magistrate erred in law and fact when she disregarded the defence by the Appellant that he was indeed framed up. 3. The appeal was vehemently opposed although the prosecution did not file its submissions. 4. The Appellant relied on submissions (undated) in which he maintained his innocence and contended that he was framed; that the evidence of the victim was neither reliable nor trustworthy given that when her father asked her what was happening in her room she did not respond; that the alleged defilement was not exhaustively and scientifically substantiated and that the case was based on suspicion and speculation. He also raised the issue of legal representation thereby contending that his conviction was not safe as he was neither afforded legal representation nor informed of his right to such representation. He also took issue with the investigations which he referred to as shoddy and biased and further contended that there were discrepancies and inconsistencies in the evidence of the prosecution witnesses. He urged this court to allow the appeal on conviction and quash it. 5. In regard to the sentence, the appellant submitted that the minimum mandatory sentence is unconstitutional. He cited the case of Dismas Wafula Kilwake v Republic [2018] eKLR and stated that the Supreme Court decision in the case of Republic v Joshua Gichuki Mwangi & 4 Others (Petition E018 of 2023) [2024] KESC 34 (KLR) was an error as the apex court did not provide any rationale for its decision. He submitted that the decision was also devoid of any historical context informing legislation much as the minimum mandatory sentences are devoid of the principle of proportionality. He urged this court to consider a more lenient sentence based on the circumstances of the case and the Sentencing Policy Guidelines. He reiterated that the prosecution did not prove its case beyond reasonable doubt and urged this court to allow his appeal in its entirety. Analysis and determination 6. As the first appellate court I have reconsidered and evaluated the evidence in the court below so as to arrive at my own independent conclusion albeit taking into account that I neither saw nor heard the witnesses. I have also considered the grounds of appeal, the submissions, the cases cited by the appellant and the law. 7. That the victim in this case was at all material times a child aged 12 years is not in doubt as a certificate of birth was produced at the hearing. The same indicates that she was born on 16th December 2009. That means that as at the time of the offence, she was a few months short of her thirteenth birthday. The birth certificate settles the first element of the offence of defilement. 8. The victim’s evidence in regard to the second element, which is penetration was that on the material day, she met the appellant at about 10 p.m. as she was going home from a ‘kesha’. He approached her and inquired if she had done bad manners with anyone. She refused to talk to him. She later met him at their house. She narrated that he took a blanket then removed all her clothes and inserted his penis into her vagina. Her sister (PW4) found the two of them together in her (victims’) bed. Earlier she had looked for the victim at the ‘kesha’ so they could go home together but she did not find her. On finding the appellant in their bedroom in the victim’s bed she rushed outside locked the door and ran to call her mother. The court heard that the appellant was found in a corridor in the girls’ bedroom. He was apprehended and later taken to the police station. 9. On his part, the appellant testified that on the material day at about 10 p.m. he was on his way home when he met five people all from one family. They ordered him to stop without telling him why they were arresting him. He contended that he was framed because of a dispute concerning land. He denied that he defiled the victim and contended that the doctor did not find any evidence of defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5903/eng@2026-04-30 2

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10. I have evaluated the evidence by both sides and also considered the appellant’s submissions carefully. It is my finding that contrary to the appellant’s assertion, there is medical evidence of defilement. The doctor testified that when he inserted his fingers into the child’s genitalia to examine her there was blood. This corroborates the victim’s evidence that she bled. Moreover, there is evidence that the appellant was found in the same bed as the victim. This evidence was corroborated by the girl’s sister (PW4) and father (PW5). It was at night and so it is not expected that people, other than family members were there. However, the complainant’s father (PW5) did send for a neighbour (PW3) who confirmed to this court that he found the Appellant in the victim’s bedroom. I therefore believe that the victim told the truth. The appellant did not offer any explanation of how he got to the victim’s bed or what he was doing there. His evidence that he was arrested by a group of five men as he was going home is not supported by evidence but that of the victim was corroborated despite that it required no corroboration. I am satisfied therefore that the elements of penetration and identification of the perpetrator, were proved beyond reasonable doubt. 11. The sentence imposed by the court is the minimum provided under Section 8(3) of the Sexual offences Act. The age of the victim places her within that section. The Supreme Court has recently settled the issue of whether such sentences are lawful – see the cases of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) and the case of Republic v Julius Kitsao Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) [2025] (11 April 2025) (Judgment). In the latter case that court stated: “ (1) Whether the Court of Appeal Erred in Law by Substituting the Life Imprisonment Sentence with 40 years Sentence thereby Usurping the Legislative Powers to Define Sentences. (67) Article 94 of the Constitution provides that legislative authority is derived from the people and, at the national level, is vested in and exercised by Parliament, while every court within the constitutional framework has the authority to determine the constitutionality of a statute. Article 165(3)(b) grants the High Court original jurisdiction to determine the question whether a right or fundamental freedom under the Bill of Rights has been denied, infringed, violated or threatened. The Court of Appeal, when acting within its appellate jurisdiction, is empowered to scrutinize and interpret the constitutionality or otherwise of a statute, the issue equally having been canvassed at the first instance before the High Court. The court's role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication. (68) Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a court we have invoked this remedy in various instances; in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5903/eng@2026-04-30 3

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the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC 23 (KLR) Hon. Justice Kaplana Rawal, DCJ in her concurring opinion made recommendations to amend section 16 of the Supreme Court Act. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In National Bank of Kenya Limited v Anaj Warehousing Limited (Petition No.36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act. (69) We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.” 12. To state that the sentence was unlawful is therefore misconceived. The Supreme Court being the highest court in the land, its decisions are binding on all the other courts including this court. That is in line with the doctrine of stare decisis. The argument that the decision of the Supreme Court is an error cannot therefore stand. 13. I have considered the grounds that the appellant ought to have had legal representation. Looking at the proceedings, I am satisfied that despite conducting his own defence he was not prejudiced at all. His right to fair trial was hence not violated and this ground cannot hold either. 14. Having found that the case against the appellant was proved beyond reasonable doubt and that the sentence imposed was lawful, I proceed to find no merit in the appeal and dismiss it. The conviction and sentence of the learned magistrate are upheld. It is so ordered. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF APRIL 2026. E. N. MAINA JUDGE In the presence of: Appellant in person at Machakos Main Prison No appearance for Prosecution Counsel Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5903/eng@2026-04-30 4

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