Jnk v Republic

5. a. That, the learned trial magistrate still erred in both matters of laws and facts by convicting and sentencing the Appellant without considering that the ingredients of defilement were not proved beyond any reasonable doubts. b. That, the learned magistrate still erred in both matters of laws and facts by failing to note that the age of the complainant was not established to warrant a safe sentence of 20 years imprisonment c. That, the learned trial magistrate still erred in both matters of laws and facts by disregarding the Appellant’s defence without giving cogent reasons. d. That, the learned trial magistrate erred in both matters of law and facts by failing to record reasons for believing a single eye witness contrary to section 124 of the Evidence Act. As a first appellate court, I have the duty to revisit the evidence in the trial court and come to my own conclusion. This duty was aptly explained by the Court of Appeal in the case of Kiilu & Another-vRepublic (2005) 1 KLR 174 where the Court of Appeal stated:“ 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 to the appellate court’s own decision on the evidence. The first appellate court must itself weight conflicting evidence and draw its own conclusions. It is not the function of a 1st appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion. It must itself make its own finding. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had advantage of hearing and seeing the witnesses.” 6. I proceed to summarise the evidence presented in the trial court in the succeeding paragraphs. The Prosecution’s Case 7. The victim (BM) testified as PW1. His evidence was that he was on his way home from the shopping centre on 4th September 2020 when the Appellant (then Accused) who was armed with a panga accosted him, forced him into his house and penetrated him in the anus. That he screamed and the Accused’s father came to his rescue. 8. PW1 further testified that he was taken to Turima Tweru Police Post to make a report then to Marimanti Police Station and Marimanti Level 4 hospital. He told the court that he knew the Accused as he was his cousin being the son of his uncle, meaning brother to PW1’s mother. 9. LK (PW2) was the mother of the victim. She testified that PW1 was born on 10th May, 2022 and had a disability in speech and sometimes lacked co-ordination. That he attended [Particulars Withheld] Special needs School. She stated that PW1 arrived home crying and reported that the Accused had anal sex with him. That they reported the incident. She told the court PW1 was born on 10th May, 2022. 10. Lilian Wahu, clinical officer at Marimanti Level 4 hospital testified as PW3. She examined the victim PW1 on 5th September, 2020 and filled the Post Mortem Form on 7th September, 2020. That PW1 reported a history of having been penetrated in the anus severally by a person known to him with the last episode being on 4th September 2020. She testified that PW1 was mentally challenged but coherent. That the muscle form of the anal sphincter muscles was reduced suggesting probable habitual sodomy. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5968/eng@2026-04-30 2

page 2 of 7

11. The Investigating Officer was CPI Henry Njeru of Turima Tweru Police Post. He testified that he received a telephone call report from the father of PW1 that PW1 had been sodomized by JN. That PW2 went to the Police Post and also made a similar report under OB No. 03/05/2020. That he proceeded to where the Accused lived and arrested him and escorted him together with the complainant and his mother to Marimanti Police Station where they recorded their statements and were issued with a P3 Form. 12. PW4 produced the victim’s Birth Certificate as P. Exhibit 2. The Defence Case 13. Placed on his defence, the Accused JNK gave a sworn statement in which he stated that the charges were a fabrication because he had a case against the complainant’s people which he worn. He stated in cross-examination that the victim BM was his cousin as their respective mothers were sisters. That BM’s mother K fabricated the defilement case to ensure that he was imprisoned. The Accused closed his case without calling any witnesses. 14. As already stated, the trial court after hearing the case convicted and sentenced the Accused to 20 years’ imprisonment. 15. The present Appeal was canvassed through written submissions as directed by the court. The Appellant’s submissions were dated 20th November, 2024 while the Respondent’s submissions were dated 12th March, 2025. 16. I have considered the trial record, the grounds of appeal, and the respective submissions of the parties. I have paraphrased the Appellant’s home-made grounds to read that the prosecution case was not proved beyond reasonable doubt. That his defence was not considered and that the sentence of 20 years’ imprisonment was harsh and excessive. 17. The issues which arise for my determination are intrinsically linked to whether or not the ingredients of the ofience were proven to the required legal standard and are as follows:i. Whether the age of the victim was proved. ii. Whether penetration was proved. iii. Whether the Accused was positively identified. iv. Whether the Accused defence was given due consideration, and, v. Whether the sentence was appropriate. (i) Penetration 18. I will begin with the question whether or not there was penetration. 19. The Appellant submitted that the ingredients of the ofience were not proved while the Respondent maintained that they were proven. With respect to penetration, the victim (PW1) testified that he was on his way from the trading centre when the Appellant accosted him on the road, took him to his (Appellant’s house) and forcefully caused his (Appellant’s) penis to penetrate his anus. That he screamed and the father of the Appellant came to his rescue. The clinical officer (PW3) testified that she examined the victim on 5th September 2020. He was presented with a history of having been severally penetrated in the anus. That she observed the patient to be mentally challenged but coherent and able to answer questions. She found his genitalia normal and the muscle form of the anal sphincter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5968/eng@2026-04-30 3

page 3 of 7

muscles reduced with the patient having inability to control stool. She formed the opinion that there was probable habitual sodomy. 20. Cross- examined, PW3 stated that the patient could not control his stool as a result of the inability of the anal muscles to contract or relax automatically. 21. I have closely examined the evidence of the victim. The trial court was informed by the victim’s mother (PW2) that he was born with some disability and that he could not speak properly and at times lacked co-ordination and had attended a special school. The victim however testified. The court noted that “witness demonstrates that the Accused caused his penis- which he uses for urinating to penetrate my anus which I use for defecating.” 22. It is clear to me from the above testimony that the victim though challenged understood what had happened to him and was coherent in his testimony. His testimony was believable. 23. The Appellant complained that the trial court believed the evidence of the victim and convicted him using Section 124 of the Evidence Act. The record however shows that he was not convicted on the sole evidence of the victim as there was medical evidence. 24. I have considered the medical evidence summarized above. I find it corroborative of the victim’s testimony that he was penetrated in the anus. The clinical officer (PW3) made a finding that the anal muscles had loosened as a result of anal penetration. I have no reason to doubt the expert evidence of PW3. It was consistent with the evidence of the victim. 25. It is my finding therefore that the ingredient of penetration was proven. Section 2 of the Sexual Offences Act gives the definition that “genital organs” includes the whole or part of male or female genital organs and for purposes of this Act includes, the anus.” The victim was penetrated in the anus which is clearly included in the definition of genital organ. (ii) Identification of the accused 26. No conviction can ensue in a criminal charge unless the Accused was identified as the perpetrator. The identification must be proven beyond reasonable doubt. In the case of Cleophas Wamunga vs. Republic (1989) eKLR expressed itself as follows:“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger……” 27. In this case the identifying evidence was given by the victim (PW1). He told the court that the Accused accosted him while on his way from the trading centre, pulled him to his house and penetrated his anus. From his evidence the incident happened at dusk. This means that the conditions of identification may not have been favourable. 28. PW1 however stated that the Accused was his cousin in the sense the Accused’s father and the victim’s mother were siblings. This means that they were related. They were not strangers. The victim testified thus:“ The Accused is well known to me. He is my cousin. I saw him in the moonlight. In the house there were no lights but I know it was him because I know his voice. I know his house and I know he is my cousin and son to my mother’s brother. He is a son to my maternal uncle. The Accused is seated at the dock.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5968/eng@2026-04-30 4

page 4 of 7

29. The above testimony demonstrates that the Accused and the victim were close relatives and were very well known to each other. Indeed, the Accused did not dispute that relationship. It was also significant that the victim stated that when he screamed the person who intervened was the father of the Accused who was the victim’s maternal uncle. 30. I am satisfied that the Appellant was clearly identified as the person who forcefully penetrated the victim in his anus. Age of the victim 31. I have considered the age of the victim last as this was heavily contested. The Appellant submitted that the victim was aged 18 and not 17 years as per the Birth Certificate [P. Exhibit 2] and the testimony of the mother (PW2). The Respondent on the other hand submitted that the victim was 17 according to the evidence presented in the trial court. 32. Age is a critical ingredient in the ofience of defilement. This is because Parliament in its wisdom set graduated sentences according to the age of the victim. The younger the victim the more severe the sentence. See Thomas Mwambu Wenyi Vs. Republic [2017] eKLR. 33. There was no contestation on the date of the alleged ofience. As per the charge sheet, the ofience occurred on 5th September, 2020 at [Particulars Withheld] village. The victim’s mother PW2 testified that the victim was born on 10th May, 2002. The victim’s Birth Certificate was produced by the Investigating Officer PW4 as Prosecution Exhibit 2. 34. I have looked at the Birth Certificate [P. Exhibit 2]. It indicates the date of birth as 10th May, 2002. By simple calculation the victim was 18 years and 3 months on the date of the commission of the ofience. His 18th birthday was 10th May, 2020. 35. I agree with the Appellant that the victim was not below 18 years at the time of the ofience on 5th September 2020. It is my finding that the trial court was in error in holding that the victim was a child as per the definition in the Children Act. 36. I have found the ingredients of penetration and the positive identification of the Accused proven beyond reasonable doubt. I have however found that the victim of the ofience was 18 years at the time of the perpetration of the ofience against him. The ofience committed against him was therefore not defilement but rape. 37. It is the view of this court that Appellant ought to have been charged with the ofience of rape contrary to section 3 of the Sexual Offences Act. 38. Section 179(2) of the Criminal Procedure Code allows the court to convict of an ofience not charged. It provides:(2) 39. “ When a person is charged with an ofience and facts are proved which reduce it to a minor ofience, he may be convicted of the minor ofience although he was not charged with it.” In the case of Robert Mutungi Muumbi v Republic cited in Harun Mungeti Kiragu Vs. Republic [2015] eKLR the court of appeal interpreted the law as follows:As is apparently clear, section 179 of the Criminal Procedure Code empowers a court, in some particular special circumstances, to convict an accused person of an ofience, even though he was not charged with that ofience. The court contemplated by section 179 can be either the trial court or the appellate court. The real question here is not whether the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5968/eng@2026-04-30 5

page 5 of 7

appellant was charged with indecent assault of NK for which the High Court convicted him. That was not necessary under section 179. The question is whether the special circumstances contemplated by section 179 were in existence to enable the court convict the appellant of an ofience with which he was not charged. An accused person charged with a major ofience may be convicted of a minor ofience if the main ofience and the minor ofience are cognate; that is to say, both are ofiences that are related or alike; of the same genus or species.” (Underline mine) 40. The court further went on to state that:To sustain such a conviction, the court must be satisfied on two things. First, that the circumstances embodied in the major charge necessarily and according to the definition of the ofience imputed by the charge, constitute the minor ofience. Secondly, that the major charge has given the accused person notice of all the circumstances constituting the minor ofience of which he is to be convicted. (See ROBERT NDECHO & ANOTHER V. REX (1950-51) EA 171 and WACHIRA S/O NJENGA V. REGINA (1954) EA 398). Spry, J. explained the essence of the first consideration as follows in ALI MOHAMMED HASSANI MPANDA V. REPUBLIC [1963] EA 294, while construing the provision of the Tanzania Criminal Procedure Code equivalent to section 179 of the Kenya Criminal Procedure Code: Subsection (1) envisages a process of subtraction: the court considers all the essential ingredients of the ofience charged, finds one or more not to have been proved, finds that the remaining ingredients include all the essential ingredients of a minor, cognate, ofience (proved) and may then, in its discretion, convict of that ofience. That conclusion is reached at the stage of judgment when it is not practical to require the accused person to plead afresh to the minor ofience. It is a decision premised on the discretion of the court based on the evidence adduced at the end of the trial. The second consideration arises, of necessity, precisely because the accused person is not charged with, and has not pleaded to, the minor cognate ofience. The purpose of delving into this consideration is to satisfy the court that the accused person was not prejudiced, and that by being charged with the major ofience, he had sufficient notice of all the elements that constitute the minor ofience. (See REPUBLIC V. CHEYA & ANOTHER [1973] EA 500). In this case we are satisfied that committing an indecent act with a child is a minor and cognate ofience of defilement with which the appellant was charged. The elements of the ofience of committing an indecent act with a child are ingrained or subsumed in the elements of the ofience of defilement. The former attracts a comparatively lesser sentence than the latter. Accordingly, we find that the appellant was properly convicted of indecent act with a child under section 179 of the Criminal Procedure Code even though he was not charged with that ofience and had not pleaded to it. The requirements of section 179 were satisfied. (Underlining ours). 41. The caveat is that the substituted charge must be one that gives the accused notice of all the elements of ofience. The ofiences must also be cognate, or related or alike. They must be of the same genus or species. 42. In the present case, the charge was defilement. Defilement and rape are ofiences of the same genus. The distinguishing factors being the age of the victim in defilement; and; the absence of consent in rape. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5968/eng@2026-04-30 6

page 6 of 7

Defilement does not require prove of lack of consent while rape does. This court must therefore reevaluate the evidence to satisfy itself whether the act was consensual or not. 43. In this case, the evidence has shown that the victim sufiered mental disability. This means that he could not have had capacity to consent to the sexual act. 44. In the end, I am satisfied that the ofience was proved. I substitute the conviction for defilement with that of rape contrary to section 3 of the Sexual Offences Act; which carries a minimum sentence of 10 years’ imprisonment. 45. With Respect to sentence, I set aside the sentence of 20 years’ imprisonment and substitute therefor a sentence of 10 years’ imprisonment from the date of sentence by the trial court. Orders accordingly. JUDGEMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 30TH DAY OF APRIL, 2026. .......................... R. LAGAT-KORIR JUDGE Judgment delivered in the presence of the Appellant acting in person at Embu Prison and Ms Rukunga for the Respondent. Muriuki (Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5968/eng@2026-04-30 7

page 7 of 7