Joseph Mutua Kyalo v Republic

4. PW2, the complainant told the court that she was aged 10 years and that on the material time she was not going to school; that on the 6th March 2023 she woke up to go to school and then decided to pick oranges from a farm. It was then that she met the appellant who covered her mouth with a head clothe, carried her on his shoulders and took her to his house. He locked her in and placed her on the bed and defiled her locked her in and went out, came back drunk and raped her again. He raped her four times. She further stated that he forced her to eat lunch and supper; that some lady came to request for salt and the appellant placed her on a seat and tied her. Her mother then arrived and asked for her but the appellant said she was not inside the house; that her mother threw down the salt that had been borrowed and the victim was removed from the house and taken to the DC and then to hospital. In cross – examination she denied that she went to the accused’s house at 10 am. She further said that the appellant had alleged that he was going to give her some items from his house to take to her grandmother. She averred that her mother came with her father and other persons at the appellant’s home. 5. PW3, the complainant’s mother testified that she knew the appellant by the name ‘soldier’; that he was a neighbour and a friend; that on 6th March 2023 at 5.30 am, she prepared the victim for school and then went to milk a cow; that later on at 6 a.m when she went back in the house she found the victim’s school uniform and books and shoes thrown on a chair but the victim was missing. They searched for her the entire day; that the following day she was informed by a certain lady that she had seen the girl at the home of the appellant; that they told the lady to go to the home while pretending to ask for salt. She followed behind with her husband and others. When they reached the home the appellant said that the victim was not in the house. However, the mother called the complainant through the window and she responded therefrom. They rescued her and also found her biker in that house. In cross – examination she said that she saw her child at 2 p.m. but she ran away since the appellant had told her to run away. She denied that she colluded with the appellant’s neighbour who went to borrow salt from him; that she does not know if the said neighbour had a grudge with him or whether the neighbour sold him land. 6. PW4, the village manager, told the court that on 7th March 2023 the victim’s mother called him and said that her child who had been missing had been found. He was to go to the scene. He went to the appellant’s house and found the appellant and the child in the house. The victim’s mother and other persons were outside the house. He told the appellant that he either opens the door or he lets the public assault him. The appellant opened and they went to the police station. In cross –examination he stated that he entered in the house and saw the appellant with the child. 7. PW5 was the Clinical officer at Matuu Level 4 Hospital. Her evidence was that the complainant visited the facility on the 7th March 2023 with a history of defilement on the day after she disappeared from home and went to stay with a man overnight; that she found that her vagina had lacerations and bruises. The hymen was freshly broken and she had a bloody discharge. He produced the complainant’s P3 form, treatment notes, lab results and PRC form as exhibits. She said that she found evidence of penetration. PW6, the investigating officer testified that she conducted investigations and found that the appellant defiled the victim after he called her in his house. She further stated that the child told them that it is the appellant who defiled her. 8. On his part the appellant testified that on 6th March 2023 he was not even in the vicinity; that he had gone for a party at his aunt’s place at Machakos. He went back home at 2 p.m. It was at that time the victim went to his place asking for lemons while alleging that it is the mother who had sent her for them. Since he was going to fetch milk from the canteen he told her to pick them herself and he left for the market. On the way he met the victim’s father and told him that the child was at his home fetching lemons; that as he went back he saw the girl’s mother and other ladies from a distance. One https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5910/eng@2026-04-30 2

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of the persons was a lady he had a grudge with. The child was standing in the home. The mother and others followed him. The child saw them and hid behind the house. The mother raised an alarm and a crowd formed. The village manager came. The mother and the neighbour went where the child was hiding and spoke to her for long. The appellant insisted going to the police station as the crowd wanted to lynch him. He alleged that at the hospital the neighbour he had sold land to and the mother to the victim entered therein. He averred that it was possible that the child slept somewhere else on the 6th March 2023, was defiled there and then went to his place on the 7th March 2023 hence the medical evidence herein. He alleged that the complainant’s father and the person he sold land to damaged his house during the arrest. 9. DW2 testified that on the 6th March 2023, she was in a function with the appellant at Masii and that they came back on the 7th March 2023 therefore the appellant could not have committed this offence. 10. The Appeal is premised on the following grounds: 11. “ (1) That the learned magistrate erred in law and facts to hold that appellant was positively identified as the alleged perpetrator yet the prosecution witnesses were not reliable. (2) That the learned magistrate erred in law and facts by convicting the appellant yet the elements for the offence were not established. (3) That the learned magistrate erred in law and facts by awarding a sentence that was not proportionate to the weight of the advanced prosecution evidence. (4) That the learned magistrate erred in law and facts by disregarding the advanced defence evidence which was capable worth of believe. (5) That the appellant be served with records to help him prepare more substantial grounds and to be present during the appeal hearing.” In his submissions, the appellant amended his grounds of appeal as follows: “ (a) That the learned trial magistrate erred in law and facts when he failed to note that the ingredients for the offence were not established. (b) That the learned trial magistrate erred in law and facts when he failed to find that the prosecution case was not proved as the credibility of the complainant was questionable. (c) That the learned trial magistrate is faulted for disregarding the defence which was not rebutted without cogent reasons.” 12. The appeal was canvassed by way of written submissions. The appellant acted in person while the state was represented by Prosecution Counsel Ms Nyauncho. 13. The appellant submitted that the ingredients of the offence were not proved beyond reasonable doubt. On the element of penetration he submitted that the evidence of the victim lacked clarity and specificity; that her narration was vague and did not describe the act in terms that would satisfy the legal definition of penetration in Section 2 of the Sexual Offences Act; that the evidence of the medical officer did not conclusively establish that the appellant was the perpetrator as the spermatozoa though noted was not linked to him; that the trial court’s findings were speculative and that being a child the victim’s evidence required to be corroborated. The appellant further submitted that the learned https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5910/eng@2026-04-30 3

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magistrate failed to find that the demeanor of the complainant was questionable; that her evidence was riddled with inconsistences and contradictions that cast doubt on her credibility. The appellant contended that the fact that the victim did not attempt to escape or call for help, yet it was her evidence that she had been left alone in his house, undermine the reliability of her account. He urged this court to find that the inconsistencies in the complainant’s testimony, the “implausibility” of her narrative and the contradictory evidence of PW4 collectively render the victim an unreliable witness and hence the conviction cannot stand. The appellant also alleged that the learned magistrate ignored his defence and that the sentence meted was harsh and excessive and not in accordance with the Sentencing Policy Guidelines. He urged this court to allow this appeal, quash the conviction and set aside the sentence. In support of his submission, the appellant placed reliance on the following cases:-Kaaman v Republic [2024] KEHC 10213 (KLR).Kiprop v Republic [2024] KEHC 13570 (KLR)Maina v Republic [2024] KEHC 3870 KLRAssen Jillo Mohamed v Republic [2021] KEHC 4140 (KLR)Mutie Musauli v Republic [2019] eKLRDaniel Kiplimo Cherono v Republic [2014] eKLRKarimi v Republic [2016] KECA 812 (KLR)EKL v Republic [2024] KECA 1302 (KLR)Woolmington v DPP [1935] AC 462Fatuma Hassan Salo v Republic [2006] eKLRRobert Kiplangat Too v Republic [2020 eKLR 14. For the State it was submitted that the charge was proved beyond reasonable doubt; that the sentence was lawful and the appeal should be dismissed and the conviction and sentence be upheld. 15. In highlighting his submissions, the appellant contended that the birth certificate produced in evidence was not genuine as all the dates show the year 2018. He stated that it is not possible to tell the age of the minor and hence the reason he did not contest it. He also took issue with the medical evidence in that whereas the P3 form showed spermatozoa the PRC (Post Rape Care) form did not; also that although the PRC indicated the victim had STD, his test was negative. He contended that he had heard that even the complainant wished to say it was all a lie. Analysis and determination 16. An appeal being akin to a retrial, I have carefully reconsidered and evaluated the evidence in the court below so as to arrive at my own independent conclusion albeit taking into account that unlike the learned Magistrate, I did not see or hear the witnesses – see the case of Okeno v Republic [1972] EA 32 at Pg 36 where the court stated: “ The first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, in deciding whether the judgment of the trial court should be upheld, as well of course as deal with any questions of law raised on the appeal, see Selle v Associated Motor Boat Co. [1968]E.A. 123” 17. It is always the onus of the prosecution to prove the case against the accused person beyond reasonable doubt. It is often said that it never falls upon the accused person to prove their innocence. In the instant case the appellant contends that the prosecution did not prove the elements of the offence of defilement beyond reasonable doubt and that his defence was ignored. The first element of the offence is that the victim is a child and her age for the purposes of sentence. The exact age of the complainant/victim becomes important because the sentences differ according to the age of the victim. The second element is penetration which again must be proved beyond reasonable doubt but bearing in mind that the law is that a court can convict on the evidence of the victim alone provided the court believes the victim and gives its reasons for so doing. In other words, the evidence of a victim of a sexual offence does not require corroboration – see Section 124 of the Evidence Act. The evidence of the victim must, as correctly submitted by the appellant, be credible, reliable and trustworthy in order to sustain a conviction. The last element is the identification of the accused person as the perpetrator of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5910/eng@2026-04-30 4

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18. The particulars of the charge placed the age of the victim as ten (10) years old. To prove the age, the prosecution produced a birth certificate which is the best evidence but the appellant has impeached that certificate for reason that all its dates are in 2018. I have seen that certificate and it clearly indicates the date of birth as 20th August 2011. It is the date of registration of the birth and the date of issue that took place in the year 2018. This certificate is compiled from the register of Births and Deaths and it states that much on its face. It is sealed and signed by the Registrar and bears a pronouncement at its footer that it should be received as evidence of the dates and facts therein contained without any other proof of such entry. This court has no reason to doubt the genuiness of the certificate and I am therefore satisfied that the age of the complainant/victim was proved to the required standard as the offence occurred on between 6th March 2023 and 7th March 2023 and she was born on 20th August 2011 meaning that she was five months short of her 12th birthday. 19. On the element of penetration, the appellant contends that the evidence of the victim was inconsistent and hence not credible and that it was not supported by medical evidence. It is my finding that the victim was very clear on what had been done to her. She told the court that she was carried shoulder high, taken into a house and onto a bed and raped. It is the appellant himself who referred to the case of Mutie Musauli v Republic [2019] eKLR where the court stated: “ [26]The pertinent legal issue is whether there was penetration by the appellant into the genital organ of PW1. Proof of penetration is established either by the victim’s evidence, medical evidence or any other cogent evidence, (See Remigious Kiwanuka -v - Uganda; S. C. Crim. Appeal No. 41 of 1995 (Unreported). The slightest penetration is enough to prove the ingredient of the offence of defilement. In the persuasive case of Michael Kihara Kariuki -v -Republic [2017] eKLR, it was correctly stated that proof of defilement and the key ingredient of penetration is not dependant on the words used to describe the genital organs but is dependent on whether there was cogent, consistent and reliable evidence adduced by the prosecution witnesses to prove the offence.” 20. I have considered the evidence of the victim very carefully and I have not found any inconsistency or contradiction. Moreover, whereas her evidence did not require corroboration it received support from her mother (PW3) and the village manager (PW4) who upon going to the appellant’s house in the guise of borrowing salt found the victim in that house. To some extent it also received corroboration from her head teacher (PW1) when he confirmed that she was not in school on 6th March 2023 and 7th March 2023. Further, it also received corroboration from the appellant when he confirmed that she was in his compound on 6th March 2023, albeit that he said she had gone there to pick lemons whereas her evidence was that she had gone to pick oranges. All this evidence confirms that she was a truthful witness. His allegation that he was at home could not displace the cogent evidence adduced by the prosecution witnesses. 21. The medical evidence confirmed penetration in that she had bruises in her genitalia and a bloody discharge. There is nothing in the P3 form, PRC or other medical evidence adduced, that the victim had a sexually transmitted disease (STD). What she had was a UTI. It is therefore neither here nor there that the appellant’s results did not show an STD. The medical evidence in this case has satisfied the test in the case of Daniel Kiplimo Cherono v Republic [2014[cited by the appellant. Having considered the evidence in its totality, it is my finding that all the elements of the offence of defilement were proved beyond reasonable doubt and that the appeal against conviction has no merit. 22. In regard to the sentence, as stated earlier, the age of the victim determines the sentence. The Sexual Offences Act has prescribed minimum sentences which the Supreme Court, the highest court in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5910/eng@2026-04-30 5

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land has determined cannot be altered by the courts – see the case of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) where the Court stated:“ 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. 23. (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 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.” This court is bound by the decisions of the Supreme Court. Be that as it may the trial court did err in failing to consider the age of the complainant in the birth certificate hence arriving a sentence for the age bracket of children of eleven years or less. The sentence meted should have been that under Section 8(3) of the Act which prescribes at a sentence of not less than twenty years imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5910/eng@2026-04-30 6

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Accordingly I shall set aside the sentence of life imprisonment and having regard to the circumstances of this case substitute it with a sentence of thirty (30) years imprisonment but so as to comply with Section 333(2) of the Criminal Procedure Code, I shall direct that the sentence be computed to run from the date of arrest which is 7th March 2023 – that will take into account the eight months during which the appellant was in remand. The appeal succeeds only to that extent. 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: The Appellant in person (at Kamiti Max Prison) No appearance for the State Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5910/eng@2026-04-30 7

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