High Court 6411 of 2026

5. The trial court considered the case and rendered Judgment on 23.5.2018. The Court found the Appellant guilty and convicted him on count I and II. The Appellant was also sentenced to 20 and 30 years imprisonment respectively. 6. The Appellant, aggrieved, lodged this appeal vide the Petition of Appeal dated 25.6.2018 and subsequently amended. He raised these material grounds: a. The Appellant pleaded not guilty. b. The trial court ought to have retried the Appellant as his rights were infringed. c. The court erred in relying only on the evidence of the prosecution’s single witness. d. The court erred in failing to consider that sentence given was harsh and excessive. e. The court erred in not considering that the elements of the offence were not proved to the required standard. f. The court failed to consider that there was a grudge between the Appellant and PW2 which occasioned serious miscarriage of justice. Evidence 7. At trial, PW1 was the minor. He attended [Particulars Withheld] Primary school in class four. He had earlier dropped out of school but was back. The Appellant was his neighbour. He could not recall the date or month. It was 2016, middle of the year. He went to fetch firewood at 1 pm. He came across the Appellant. The Appellant called him and gave him Ksh. 50/=. He did not say what the money was for. They parted ways. After 2 days, he demanded for his money. The Appellant refused to give the minor time to refund the money as he had utilized it. The Appellant asked the minor to go to his house and the minor followed him. He grabbed the minor and tied his hands with a rope anchored on a bed. He removed the minor’s underwear. The Appellant removed his trousers and boxer and did bad manners to the minor into his buttocks. He pulled out his penis and inserted in the minor’s buttocks. He was injured and he bled from the anus. He put clothes in the minor’s mouth when the minor screamed. He warned to cut the minor into pieces if the minor reported. The complainant developed rashes and was taken to hospital. The doctor came and did tests to all the family members. The doctor then declared that the minor had HIV. He had not told anyone what happened. At this point, he told his mother. Investigations were done and the Appellant was arrested. 8. On cross examination, the Appellant’s home was about 100m from PW1’s parents’ home. The Appellant stuffed a red piece of cloth in PW1’s mouth. PW1 could not recall the exact dates. They had finished first term. PW1 did not report because he was threatened. 9. PW2 was NW. PW1 was her son. On 13.9.2016, PW1 had developed strange illness. He had rashes and wounds on his hands. They took him to hospital. It was discovered that PW1 was HIV positive. PW1 was the first born. All her siblings were tested and they were negative. PW2 was also negative. There were 5 children. PW2 had separated with her husband. PW1 told the doctors that he contracted HIV from the Appellant. On cross examination, the Appellant stayed on rental house near the police post. PW1 is the one who reported that the Appellant molested him. There were many ways of contracting HIV. 10. PW3 was Anthony Mwangi, the sub-county Clinical Officer. He produced the P3 Form. He examined PW1 on 12.10.2016. He had scabies. No injuries noted around genitalia. The evidence may have https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6411/eng@2026-05-07 2

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faded away. He produced treatment notes and health facility patient form. On cross examination, the Appellant was not brought to him for testing. He did not know who sodomized PW1. 11. PW4 was No. 10xxx6 PC Dedan Mulongo. He was the Investigating Officer. He took up investigations. The Appellant was tested and found to be HIV positive. It was his case that following investigations, he reasonably believed that the Appellant was culpable and he arrested the Appellant to face the charges before court. He relied on the witness statements and the medical evidence in his conclusion. 12. PW5 was PC Joel Limasia, No. 56xx3. He was attached to the Igikiro Police Patrol Base. On 17.9.2016, he heard commotion outside. It was at the house of the Appellant. He went out and saw a mob throwing stones at the Appellant’s house. They wanted to lynch the Appellant. He managed to intervene and rescued the Appellant. He took the Appellant to rescue at the police post. On cross examination, there was no complaint made before he arrested the Appellant. He rescued the Appellant. 13. PW6 was No. 68xxx4 PC Wilson Kilel. He received information about mob reaction against the Appellant. It was on 17.9.2016. He took the driver PC Njeru and they proceeded to the police post Igikiro. They found a big crowd gathering. The Appellant had been rescued. He took the Appellant to Sabasaba Health Centre for testing. He was found HIV positive. He was the initial investigating officer in the matter. On cross examination, he did not witness the molestation. 14. PW7 was Irene Waithera Mucheru. She was a clinical officer. She produced the HIV test result slip for the Appellant. On cross examination, she testified on behalf of her counterparts who had left the facility. She did not do tests on the Appellant. The HIV test was positive. 15. The Appellant also testified on oath as DW1. He testified that on the material day, he was not at the scene of crime. He was at Kayole where he worked as a businessman. He went home on 12.8.2016 and found that his father was ill. PW2 then came with a large crowd to his house. There was a grudge. He was to marry PW2. His people rejected her. He was a stranger to the allegations. DIVISION - Submissions 16. The Appellant filed submissions. It was submitted that the court failed to consider his disagreements with PW2 as illustrated in his defence. It was about grudges and personal vendetta. He cited Eliud Waweru v Republic (2019) eKLR. 17. He also submitted that the elements of the offence were not proved. He relied inter alia on Fappyton Mutuku Ngui v Republoc (2010) eKLR. It was also submitted that the elements of the offence of deliberate transmission of HIV were not proved. 18. It was submitted that the court did not consider the Appellant’s defence. On sentence, it was submitted that the sentences following conviction on both counts were respectively excessive and harsh. He cited Philip Mueke Maingi v DPP and AG. 19. The Respondent filed submissions dated 24.5.2024. It was submitted that the age, penetration and identification were proved to the required standard. They cited George Opondo Olunga v Republic (2016) eKLR and Section 8(1)(2) of the Sexual Offences Act. 20. It was submitted that the sentence of 20 years was the mandatory minimum. The sentence under Section 26 of the Sexual offences Act was 15 years that would be enhanced to life imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6411/eng@2026-05-07 3

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Analysis 21. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, 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 and demeanor which may show whether a statement is credible or not which may warrant a court different. 22. Therefore, this Court will not interfere with the exercise of judicial discretion by the court below unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: “ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 23. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. PW1 was 15 years old. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows: Defilement 24. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. It is trite that this court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted a fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6411/eng@2026-05-07 4

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1. 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 weigh conflicting evidence and draw its own conclusions. 2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; 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 the advantage of hearing and seeing the witnesses. 25. The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 26. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth: “ What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’” 27. The parameters that were to be proved in cases like the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 28. At trial, PW1 testified that on the first day, the Appellant gave him Ksh. 50/= without explanation why he was giving him. When they met on the second day, the Appellant demanded the Ksh. 50/=. PW1 had used the money and only promised to refund later. The Appellant asked PW1 to follow him to his house. They were neighbours of about 100m apart in distance. When they arrived to the Appellant’s house, the Appellant tied PW1 with a rope and anchored the rope on his bed. He then lay the Appellant on bed stomach down. He pulled down the boy’s trousers and removed his underwear. He also removed his trousers and boxer. He inserted his penis in the anus of the boy and did bad manners to him. The boy bled and was screaming. The Appellant then scuffed his mouth to prevent screams. He then left him and warned that he would cut the boy into pieces should he inform anyone. 29. It was further case of the boy, PW1, that he did not tell anyone until later he developed a strange disease characterized by rashes. The disease was not self healing and did not heal after administering drugs. Tests were subsequently done and it was established that he had contracted HIV. 30. On the issue of identification, in my close reevaluation, identification was well proved to the required standard. To this court, the Respondent’s duty was not just to prove that the minor knew the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6411/eng@2026-05-07 5

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Appellant. There was more. The Respondent needed to prove commission of the offence by the Appellant. The Appellant stayed about 100m from the home of PW1’s parents. The scene of crime was stated to be the house of the Appellant. The evidence of PW1 was not shaken. 31. On penetration, on the reevaluation of evidence, the plausible evidence of PW1 was corroborated by the medical evidence. This was not a case of a single identifying witness where the circumstances surrounding the commission of the offence could only be determined by circumstantial evidence. 32. The medical evidence suggested that the injuries could have healed due to the span of time. The tests were done in September 2016. PW1 testified that the offence likely occurred at a time they had not opened school for second term. PW1 was tested HIV positive and the Appellant was also tested HIV positive. 33. On the aspect of age, age is such a crucial component in sexual offences that it points to the extent of punishment for the offenders. This was also the position of the court in Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), where the Court of Appeal stated doth: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 34. The age of the minor herein could be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. In Mwalengo Chichoro Mwajembe vs Republic, Msa. App. No. 24 of 2015 (UR) the court held: “ ‘…………. the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof…. 35. Medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim. In Francis Omuroni vs Uganda, CR. A 2/200 it was held: “ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by a birth certificate, the victim’s parents or guardian and by observation and common sense. ….” 36. Consequently, age herein was proved by the oral evidence of the minor. The minor was 15 years at the time of the alleged offence. I find no manner in which age was not proved. The trial court that observed the boy returned the verdict that he was a minor 15 years old as asserted on medical documents too and I have no reason to interfere with factual finding. The Court of Appeal in the case of Edwin Nyambogo Onsongo Vs Republic (2016 eKLR stated as follows on the proof of age: “ ... the question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6411/eng@2026-05-07 6

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form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victims age it has to be credible and reliable. 37. I find no basis to interfere with the discretion of the trial court in finding the age to be 15 years. The court did exercise its discretion in accordance with the law. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion: “ Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed: “ The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains”. 38. The Appellant appears to appeal that the sentence was too harsh and failed to consider time spent in custody. I note that under Section 8(3) of the sexual offences Act, the term of imprisonment was 20 years for defilement of a child aged 15 years. The trial court sentenced the Appellant to serve 20 years imprisonment and this being the mandatory statutory minimum, I find no basis to interferer. 39. The trial court also sentenced him to serve 30 years in prison for deliberately infecting PW1 with HIV. Section 26 of the Sexual Offences Act provided thus: 26. Deliberate transmission of HlV or any other life threatening sexually transmitted disease (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know— (a) will infect another person with HIV or any other life threatening sexually transmitted disease; (b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease; (c) will infect another person with any other sexually transmitted disease, shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be for life. 40. Stemming from the above provision of the law, the trial court considered the offence and the effect to the minor and granted 30 years imprisonment in respect of count II. I see no reason to interfere with this discretion. In the end, the entire appeal fails. 41. I am unable to find reason to set aside the conviction. I dismiss the appeal. Determination 42. I make the following final orders: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6411/eng@2026-05-07 7

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a. This appeal is devoid of merit and is dismissed. b. 14 days right of appeal. c. File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 7TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Appellant present Ms. Wambani for the state Court Assistant – Martin/Michael M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6411/eng@2026-05-07 8

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