Loyd Muriuki Nyaga v Republic

the date of incident and examination. He produced the P3 Form PRC Form, and treatment Notes as Exhibits 2, 3, and 4 respectively. 4. The Investigating Officer P.C Nasibo Hassan wrapped up the Prosecution Case and produced the victim’s Birth Certificate (Exhibit 1.) 5. The trial court was persuaded that the Prosecution had made out a prima facie case. 6. Put on his defence, the Appellant gave sworn testimony and did not call any witnesses. He maintained his innocence while protesting that he had been framed by the victim’s family who had a scheme to take away his property and land. 7. The trial court made a finding of guilty and in a judgment dated 29th May, 2024 convicted and sentenced the Appellant to serve life imprisonment. 8. Aggrieved with the conviction and sentence, the Appellant filed the present appeal dated 17th October, 2024. The Petition of Appeal filed by Waklaw Advocate, listed the following grounds reproduced verbatim:i. That the learned trial magistrate erred in law and fact by imposing a mandatory indeterminate life sentence against the appellant. ii. That the learned trial magistrate erred in law and fact by imposing mandatory indeterminate life sentence against the Appellant, namely that such a sentence denies a convict facing life imprisonment the right to enjoy his constitutional rights. iii. That the learned trial magistrate erred in law and in fact by imposing a mandatory indeterminate life sentence against the Appellant without appreciating the fact that the Appellant’s defence and mitigation were not adequately, sufficiently and properly prosecuted by dint of the lack of representation by an advocate. iv. That the learned trial magistrate erred in law and in fact by imposing an extremely dipropionate sentence. v. That the learned trial magistrate erred in law and fact by failing to consider that the Prosecution Witnesses’ evidence were contradictory, questionable, and doubtful and untrustworthy to warrant a conviction. vi. That the learned trial magistrate erred in law and in fact in failing to infer that the investigations were not conducted to the required threshold and/or standards and that PW5 merely relied on information provided by PW3 who’s information was given by PW1. vii. That the learned trial magistrate erred in law and in fact in failing to find that the whole case against the Appellant was based on suspicions which cannot form a basis for conviction denying the Appellant a fair trial therefore violating article 50(2)(b)(g)(h)(o) and (p) of the Constitution. viii. That the learned trial magistrate erred in law and in fact in failing to exercise judicial restraint and appropriate discretion as governed and prescribed by the Judiciary Sentencing Policy Guidelines in sentencing, and proceeded to convict and sentence the Appellant to serve a life imprisonment. ix. That the learned trial magistrate erred in law and in fact in failing to consider that life imprisonment is viewed to be unconstitutional and infringes on the Appellant’s inherent rights https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5967/eng@2026-04-30 2

page 2 of 9

under the Constitution, and the Appellant’ s right to a fair trial as envisaged under article 25(c) of the Constitution. x. That the learned trial magistrate erred in law and in fact by sentencing the Appellant to serve a life imprisonment without supportive evidence. xi. That the learned trial magistrate erred in law and in fact in sentencing the Appellant to serve a life sentence which in itself is indeterminate, inhumane and violates the right to dignity under article 28 of the Constitution. 9. The Appeal was canvassed through written submissions as directed by the court. The Appellant’s undated submissions were received in court on 9th July 2025 while the Respondent and did not file submissions. 10. The Appellant submitted that the case against him was founded on suspicion and lacked proof. That there was no corroborative evidence tendered by the Prosecution. 11. The Appellant further submitted that the fair trial rights of the Accused were violated in the trial as he was not informed of his rights and was not accorded legal representation. 12. With respect to sentence, the Appellant submitted that the life imprisonment meted was indeterminate and therefore unconstitutional. That the same was harsh and excessive. 13. Through its grounds of opposition, the Respondent stated that life sentence was both lawful and constitutional and its imposition by the trial court did not violate the Appellant’s constitutional rights. 14. The Respondent further stated that the Prosecution evidence was cogent and proved the case beyond reasonable doubt. That the Appellant’s defence was adequately considered and rejected based on the weight of the evidence. 15. My duty as a first appellate court is to re-evaluate the evidence and make my own conclusions and findings. This duty was restated by the Court of Appeal in the case of Jonas Akuno O’Kubasu -vRepublic [2000] eKLR as follows:“ It is correct that on first appeal the appellant is entitled to have the appellate court’s own consideration and view of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the material before the judge or magistrate with such other material as it may decide to admit. The appellate court must make up its own mind not disregarding the judgement appealed from but carefully weighting and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness, but there may be other circumstances, quite apart from manner or demeanour which may show whether a statement is credible or not which may warrant the court in differing from the judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 16. I have considered he grounds of appeal, the evidence on record and the submissions of the parties. I isolate the following issues for my determination:i. Whether the fair trial rights of the Appellant were violated. This combines grounds 7 and 9. ii. Whether the case covering the three elements of the offence were proved to the required legal standard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5967/eng@2026-04-30 3

page 3 of 9

iii. Whether the sentence was lawful, fair and just. iv. Whether the charge of defilement ought to be substituted with a charge of incest. v. What sentence was appropriate in the circumstances. i. Whether the fair trial rights of the Appellant were violated. 17. The Appellant stated at ground 7 and 9 of the petition of appeal that his trial was conducted in an unfamiliar language respectively and that his fair trial rights under Article 50 (2) (b), (g), (h) (o) and (P) of the Constitution were breached. Article 50 (2) of the Constitution provides:“ (2) Every accused person has the right to a fair trial, which includes the right— a. to be presumed innocent until the contrary is proved; (b) to be informed of the charge, with sufficient detail to answer it; (c) to have adequate time and facilities to prepare a defence; (d) to a public trial before a court established under this Constitution; (e) to have the trial begin and conclude without unreasonable delay; (f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; (g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (i) to remain silent, and not to testify during the proceedings; (j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; (k) to adduce and challenge evidence; (l) to refuse to give self-incriminating evidence; (m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial; (n) not to be convicted for an act or omission that at the time it was committed or omitted was not— (o) (i) an offence in Kenya; or (ii) a crime under international law; not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5967/eng@2026-04-30 4

page 4 of 9

(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.” 18. The Appellant submitted that he was not informed of his right to legal representation and that being indigent, he was not afforded legal representation at state expense as required by law. He urged that his trial was a failure of justice and ought to be declared null and void. The Respondent did not submit on this issue. 19. With respect to the complaint that he did not follow his trial proceedings, I have looked at the trial record. The Appellant took plea on 18th November, 2022 and pleaded not guilty. The court was served by a court assistant named Maureen who interpreted in English/Kiswahili and Kichuka. The Appellant has not demonstrated that he did not understand all the three languages. It cannot be true therefore that he was tried in a language he did not understand. 20. With respect to legal representation, the record shows that the Appellant was not granted legal representation at State expense. His trial and conviction cannot however be rendered a nullity as there was no evidence that he did not understand proceedings or defended himself well. Indeed, the record shows that he cross-examined all the prosecution witnesses effectively and gave a sworn defence. 21. In the case of Manyeso -v- Republic [2023] KECA 827 (KLR), the court of appeal held that:“ This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not and any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.” 22. It is my finding therefore that the Appellant’s trial cannot be vitiated by lack of legal representation as there was no prejudice demonstrated. 23. Having dispensed with the legal issues as raised above, I now delve into the evidence on the ingredients of the offence. As stated in many authorities, the offence of defilement carries with it three ingredients being age of the victim, the fact of penetration and the positive identification of the perpetrator. In Charles Wamukoya Karani -v-. Republic, Criminal Appeal No.72 of 2013, the court held that the “critical ingredients forming the offence of defilement are; age of the victim, proof of penetration and the positive identification of the assailant.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5967/eng@2026-04-30 5

page 5 of 9

i. Age of the victim 24. Proof of age of the victim is important for two reasons. Firstly, the offence of defilement can only be committed against a child. Secondly, Parliament in its wisdom graduated sentences according to the age of the victim. See John Mutua Munyoki -V- Republic [2017] . 25. In this case the victim A.M.K was said to be aged 10 years. Her aunt PW2 testified that she knew when the victim was born and identified the Birth Certificate which was later produced by the Investigating Officer (PW5) as Prosecution Exhibit 1. I have looked at the exhibited Birth Certificate. It shows the date of birth as 25th January, 2012. The offence allegedly took place between August and October 2022. By simple calculation the victim was then 10 years old. She was 3 months’ shy of 11 years. 26. It is my finding, based on the Birth Certificate that the victim was a 10 year old minor. The first ingredient was therefore proven. ii. Penetration 27 Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organ of a person into the genital organs of another person. 28. Penetration is proved by the evidence of the victim corroborated by medical evidence. In the persuasive Ugandan case of Bassita Hussein v. Republic, Criminal Appeal No.35 of 1995, the Supreme Court of Uganda Court held that:“ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim’s evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt.” 29. Section 124 of the Evidence Act makes exception to the rule on corroboration in the following terms:“ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of alleged victim 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.” (Underline mine) 30. In this case the evidence of penetration was given by the victim (PW1). She told the court that the Accused who was her neighbour called her into his house to take an avocado fruit. That when she entered he removed her clothes and did “tabia mbaya” to her. That she left his house and went to her grandmother. That she reported to her grandmother and her auntie what had happened to her. 31. The trial court initially stepped down the victim without cross-examination ostensibly because she had given unsworn evidence. The record however shows that the court, after appreciating the applicable https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5967/eng@2026-04-30 6

page 6 of 9

legal principles with respect to unsworn evidence, suo moto recalled the witness and was extensively cross-examined by the Accused. 32. Upon cross-examination, PW1 maintained that she knew the Accused by the name Loyd Muriuki and that he had done “tabia mbaya” to her. She said that she told her aunties Kawira and Rita 33. The medical evidence was presented by Dr. Hillary Kangichu (PW5). He testified that the victim was presented at the Chuka hospital with a history of having been defiled by a person known to her on diverse dates between 1st August 2022 -30th October 2022. That there were no injuries on the body. Vaginal swap revealed few pus-cells but no spermatozoa. All other tests were negative. PW5 further stated that he filled and signed the P3 Form. He produced the P3 Form, PRC Form and medical treatment notes as Prosecution Exhibits 2, 3 and 4 respectively. 34. In cross-examination, PW5 stated that he could not tell whether PW1 had been defiled or not. 35. The Appellant urged that penetration was not proved. He pointed out that PW5 had stated that the medical evidence was inconclusive. He further contended that the victim’s evidence was contradictory, unreliable and uncorroborated. 36. I will start by examining the evidence of the minor victim. She told the court that the Appellant removed her clothes and did “tabia Mbaya” to her. The trial court rightly understood “tabia mbaya” to mean sexual intercourse or penetration. PW1 also told the court that she reported to her aunt and grandmother and was subsequently taken to hospital for examination. Contrary to the Appellant’s submissions, I see no material contradiction in the evidence of the victim. Her evidence was straight forward. The trial court in relying on her evidence observed that her evidence was candid on what transpired. The court stated “The witness was candid in her evidence and I find that her evidence was believable.” 37. I find no reason to depart from the above observation made by the trial court. 38. With respect to medical evidence, the same was of no value as PW5 testified that he could not tell from the medical examination whether or not there was defilement. 39. I have looked at the Exhibits 2,3 and 4. The treatment notes state that there were no bruises and hymen not felt. All laboratory tests were negative. The P3 Form notes that no sperms were seen and few pus cells seen. The doctor also made no conclusive remarks. The Appellant was therefore right in urging that the medical evidence was not corroborative. However, the law as already set out above, allows the trial court to convict on the sole evidence of the complainant if the court is convinced that such evidence was credible and truthful. Further, based on the evidence that the defilement had been ongoing, it was not expected that the medical examination would reveal much. 40. In this case, and as I have stated before, I find, as the trial court did, that the evidence of the victim was believable. I therefore find that penetration was proved. ii. Whether the Appellant was positively identiffed. 41. There can be no criminal conviction without the positive identification of the perpetrator. In this case the victim testified that the Appellant called her into his house. She stated hat he was the neighbour. That upon entering the house he did “tabia mbaya” to her. 42. There was no possibility that the minor victim mistook the identity of the person who defiled her. The Appellant was a neighbour. Infact according to the victim’s aunt, he was a relative. The victim stated in cross-examination thus: “I know your names you are Loyd. You are Muriuki….” Further, the offence occurred during the day, making the conditions for identification favourable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5967/eng@2026-04-30 7

page 7 of 9

43. I am satisfied that the Appellant was positively identified as the person who defiled the complainant. The Appellant’s defence. 44. The Appellant stated in his defence that he was Loyd Muriuki Nyaga. He stated that the victim’s family had framed him in order to take his property from him and that they had vowed to make him suffer. 45. Cross-examined, the Appellant identified the victim as A. M. He said that she was his neighbour, and niece. That he knew her and he also knew that she was mentally handicapped. 46. The Appellant further stated that he was being framed because the victim’s family wanted to get his land because his father got more land than their father. 47. I have considered the Appellant’s defence. It does two things. It admits that he was known to the victim thereby ruling out any possibility of mistaken identity. Secondly, it raises issues of a land dispute or succession not within the purview of the present criminal case. The Appellant’s defence was not credible and did not afford him any defense at all. It did not cast doubt on the prosecution case, which I have already found proven. Whether the sentence was unconstitutional 48. The Appellant’s final ground of appeal is that the sentence was not only harsh and excessive, but also unconstitutional. In submitting that the sentence was unconstitutional, the Appellant relied on the case of Evans Nyamari Ayako Vs. Republic Criminal Appeal No. 22 of 2018 which held that life imprisonment was antithetical to the constitutional value of human dignity as being inhuman, degrading and cruel. 49. In sentencing the Appellant, the trial court observed that section 8(2) of the Sexual Offences Act provides a mandatory minimum sentence and that the jurisprudence had been shifting resting with the Supreme Court decision in Republic vs. Mwangi 2024 KESC 34 (KLR) that mandatory sentence, were constitutional. 50. In the case of Julius Kitsao Manyeso v. Republic Petition No. E013 of 2024, [2023] KECA 827 (KLR), the Supreme Court affirmed that the minimum mandatory sentences in the Sexual Offences Act remained valid until and unless Parliament amended the law. The Supreme Court stated with finality that:“ We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute. 14. It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.” 51. I take guidance from the above to find that the sentence meted on the Appellant was not unconstitutional. 52. In the end, I am satisfied that the conviction was safe. I uphold the conviction and affirm the sentence. 53. The appeal is dismissed. The Appellant has 14 days’ right of appeal to the court of appeal. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5967/eng@2026-04-30 8

page 8 of 9

JUDGEMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 30TH DAY OF APRIL, 2026. R. LAGAT-KORIR JUDGE Judgement delivered in the presence of the Appellant acting in person, Ms Rukunga for the Respondent; Muriuki Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5967/eng@2026-04-30 9

page 9 of 9