Wilson Micheni Obadiah v Republic

5. The Prosecution called 6 witnesses on support of its case. At the conclusion of the Prosecution case the trial court found a prima facie case against the Appellant. Put on his defence, he gave sworn testimony in which he persisted in his innocence and claimed that he had been framed. 6. In a judgement dated 30th March 2023, the trial court convicted the Appellant and upon mitigation, sentenced him on 3rd April 2023 to serve life imprisonment. The Appeal 7. Aggrieved by the conviction and sentence, the Appellant filed the present Appeal vide Petition dated 24th September 2024. I have paraphrased his home made petition and make out the grounds that:i. The case was not proved beyond reasonable doubt and the evidence was insufficient to warrant a conviction. ii. The medical examination did not link the Appellant to the offence. iii. The trial court disregarded the Appellant’s defence without giving reasons. iv. The trial court did not consider Appellant’s mitigation and issued a harsh and excessive sentence. v. The Appellant was not given the Prosecution’s evidence in advance, contrary to Article 50 of the Constitution. 8. The Appeal was canvassed through written submissions. The Appellants undated submissions were received in court on 31st October 2025 while the Respondent’s submissions were dated 21st April 2026. 9. The gist of the Appellant’s submissions was that the case was not proved beyond reasonable doubt as there were many gaps in the Prosecution case. He submitted that he was framed as a result of his family’s dispute over succession of their deceased father’s land. 10. The gist of the Respondent’s submissions was that the Prosecution case was proved to the required legal standard. They submitted that all the 3 essential ingredients being the age of the victim, penetration and identification of the perpetrator were proved. With respect to sentence, the Respondent submitted that the same was lawful and in accordance with recent jurisprudence. 11. This is a first appeal and as such it is my duty to carefully examine and evaluate the evidence which was presented before the trial court and come up with my own independent decision. It is now well settled that an appellant on a first appeal is entitled to expect the evidence as a whole to be subject to a fresh and exhaustive examination and consideration, and to the appellate’s court own decision on the evidence. In the case of Jonas Akuno O’Kubasu -v- Republic [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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6147/eng@2026-04-27 2

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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.” 12. I have considered the grounds of appeal, the record and the submissions of the parties. The Appeal turns on whether or not the Prosecution proved its case to the required legal standard. In order to arrive at the such determination, I must re-evaluate the evidence that was before the trial court. In other words, with respect to each ingredient of the offence for a conviction to ensue on the charges laid out, the Prosecution had to prove each and every element of defilement being:i. The age of the victim ii. Penetration, and; iii. The positive identification of the Accused. Age of the victim. 13. The age of each of the two victims was not contested. Count 1 stated that the victim M.G was aged 7 years, while in count 11 the victim E.M was aged 9 years. 14. Evidence of age was given by several witnesses. For count one, the victim M.G (PW1) testified that he was a class two pupil aged 8 years. His father Machunku Njeru (PW4) testified that he was about 10-11 years old. For count II the victim E.B (PW3) told the court that he was a class 4 pupil aged 9 years. His mother Catherine Gatakaa Machunku (PW5) testified that he was 11 years old. 15. PW6 Michael Gitonga Raphael testified that his son M.G was 8-9 years’ old. He produced the Birth Certificate P- Exhibit 8. The Investigating officer PW7 produced the Birth Certificate of E.B [Exhibit 9]. 16. A Birth Certificate is prima facie conclusive evidence of age. I have looked at P. Exhibit 8 and it shows that M. M was born on 18th July 2013. Therefore at the time of the alleged offence on 20th December 2020, he was 7 years old. 17. I have also looked at Exhibit 9. It shows that E.M was born on 20th April 2011. At the time of the alleged commission of the offence on 20th December 2020 he was 9 years old. 18. I am satisfied that the respective of ages of the victims were proved to the required legal standard. They were both minors aged 7 years old and 9 years old respectively. Penetration 19. Section 2 of the Sexual Offences Act defines penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person” and genital organs “includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.” 20. In this case the Appellant was charged with defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars were that he caused his penis to penetrate the anus of M.G (in count one) and of E.M. (in count two). According to the definition of defilement above, the charge was proper. 21. I now move to consider whether the element of penetration was proved to the required legal standard. 22. PW1 (E.M) testified that he was in the company of other children when they went to a grandmother’s home. The other children including M then went to church. That when M returned from church he found him (PW1) by the road side. They went to the Appellant’s (Micheni’s) compound. Micheni https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6147/eng@2026-04-27 3

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asked them to accompany him to his shamba. That Micheni walked ahead, then M, then himself. That he climbed a guava tree while the two (Micheni and M) walked ahead and disappeared into the shamba then M called PW1 and he joined them. That he saw Micheni spread out a plastic bag, remove his trouser, as well as M’s then oiled his penis and M’s anus before lying on the back of M. That when he was done, he oiled his penis again and put is in his (PW1’s) anus. 23. PW1 further told the court that Micheni warned them not to tell anyone or else he would slaughter them and throw their bodies into the forest. 24. In cross-examination, PW1 stated on 20th December, 2020 his cousin M called him from their grandmother’s house asking him to “come and see”. He answered: “You normally defile M in the house. M was the 1st one to be defiled. I was on the guava tree. After you finished defiling you started kunilamba huku mbele……” 25. PW3 on the other hand testified that they (himself Mwenda, Collins and Nyawira) had gone to a grandmother’s home, who is a mother to Wilson Micheni (the Appellant). That Micheni told them to return to Nyawira and Collins to church and that Mwenda and himself to return. That they went back and found Micheni who had a panga knife, a sack and arimis oil. He asked them to accompany him to the shamba and when they got there, Micheni spread the sack on the ground, removed his clothes applied arimis oil on his private part, and raped him. 26. PW3 went on to state: “He removed his clothes and oiled his private part. He also oiled me in my buttocks. He took out his clothes and started raping me. The other person was standing. He made me to sleep on the side. He also slept on the side in my back. He took his private part and inserted in my buttocks. He pressed on and after he finished, he gave me Ksh.50/-. He asked me to go and change the same so that I can share with Martin Mwenda. After he finished with me, I left him oiling himself and oiling Martin Mwenda. He started raping Martin Mwenda…….” 27. I have carefully considered the testimonies of the two victims as captured above. They vividly described the events of the day surrounding the incident: how they encountered the Appellant, accompanied him to the shamba and how he had anal sex with each in turn; and how he gave them money and warned them not to tell anyone. Their respective testimonies were corroborative. 28. I have however considered that the two victims were minors and though the Appellant could be convicted on their sole testimony as provided for under Section 124 of the Evidence Act, I have considered other evidence. 29. Both victims were escorted to Chuka General hospital and were examined on 20th December 2020 by the clinical officer then on duty one Japheth Mumbere who filed the PRC Forms and Treatment Notes. The medical evidence was given by clinical officer Joseph Mwenda (PW2) who filed the P3 Form on 19th January 2021. 30. With respect to E.M, the examination revealed that he had tenderness around the anus region and a loose anus opening. Laboratory results were negative. 31. PW2 produced the following medical documents; P3 dated 19th January 2021 [Exhibit1] PRC Form signed by Flonera Muthoni dated 20th December 2020 (Exhibit 2), Medical Notes dated 20th December 2020 [Exhibit 3]. 32. With respect to M.M there were fresh wounds around the anal opening and his inner garment had grass like leaves. PW2 produced the following exhibits; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6147/eng@2026-04-27 4

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P3 dated 19th January 2021- [Exhibit 4] PRC Form signed by Japhet Mumbere dated 20th December 2020 [Exhibit 5] Treatment Notes [Exhibit 6]. 33. I have carefully examined the medical documents Exhibits 1, 2, 3, 4, 5 and 6 above. The conclusions therein show evidence of penetration. The medical evidence presented by PW2 therefore corroborate the oral testimonies of the two minors that they were penetrated in the anus. 34. I find that the second ingredient was proved to the required legal standard and beyond reasonable doubt. Identification of the perperator 35. There was no specific ground of appeal challenging identification of the Appellant. However, the offence of defilement just like any other criminal offence cannot be said to be proved without the positive identification of the offender as the person who committed the offence. 36. In this case, I have reviewed the evidence as a whole. It was clear from the evidence of the minors (PW1 and PW3) and indeed other prosecution witnesses (PW4, 5 and 6) that the Appellant was known to them. The two minors knew him by name and knew his home. He was a neighbour, and son to an elderly lady in the village whom they fondly referred to as ‘shosho’ (grandmother). That morning, the said shosho served them and other children tea before they proceeded to Sunday school. 37. In the view of this court, the two minors willingly accompanied the Appellant to the shamba because they knew him. They knew him very well and they described in a very candid manner how he had called them into his shamba and defiled them in turn and then given them money and warned them not to tell 38. PW4, 5 and 6 identified the Appellant as their neighbour. 39. It is my finding therefore that the two minors could not have mistaken him. The Appellant’s defence 40. I now turn to the grounds that the court did not consider the Appellant’s defence. The Appellant gave sworn testimony in which he told the court that he was a resident of Gitumbi village near Chogoria and was a mason. He recalled Sunday 20th December 2022 when many children including the two minor victims went to his house, then to his step-mother’s house who gave them tea. 41. The Appellant further stated that when they left grandmother’s house, they asked him for offering and he gave them Ksh.100 to go and buy credit so that he could get change from which he gave them 20/- for church offering. That he proceeded with his chores including shamba work and did not see the children again until 6pm at the police station. 42. The Appellant further told the court that the children had been couched by their father one Michael Gitonga with whom he had a grudge. That Michael Gitonga was the care taker of his sister’s shamba and the said sister had held onto the documents of their late father’s farm and was unwilling to complete succession hence their grudge. That the case was a frame up so that they could take his land. 43. The trial court stated in its judgement that the Accused’s defence as not credible and found it not believable. 44. I have considered the Appellant’s defence. Firstly, he acknowledges that he knows the victims as well as other children whom he met on the material date, 20th December 2020 at around 8.30 a.m in the morning. He also acknowledges having given the two boys some money which he states was for church offering as they were going to church. Firstly, these are material admissions that go to placing himself https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6147/eng@2026-04-27 5

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at the scene and also to acknowledging that the minors who identified him were not mistaken on his identity. 45. Secondly, the Appellant claims that he was framed. He traces his woes to his sister with whom he states they had a succession issue, and for whom the father of the 2nd complainant works. To the mind of this court, the allegation is far fetched as it does not discount the proven fact of penetration of the minors. 46. I therefore do not find the defence plausible. It does not case doubt on the prosecution case. Whether the sentence was harsh and excessive 47. The Appellant was sentenced to serve life imprisonment. In sentencing the Appellant, the trial court noted that the sentence was mandatory under section 8(i) (ii) of the sexual offences Act. 48. This court is bound by the recent jurisprudence by the Supreme Court on this question. 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.” 49. In the final analysis, I have come to the conclusion that the case against the Appellant was proved beyond reasonable doubt. I uphold the conviction and affirm the sentence. 50. The Appeal lacks merit and is dismissed in its entirety. Orders accordingly, JUDGEMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 27TH DAY OF APRIL, 2026. .......................... R. LAGAT-KORIR JUDGE Judgement delivered in the presence of the Appellant acting in person and Ms. Rukunga for the Respondent. Muriuki (Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6147/eng@2026-04-27 6

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