Dancan Mureithi v Republic

5. d. That the learned trial magistrate erred in law and facts by convicting and sentencing the appellant for ten years without appreciating that the material time of the commission of the offence, the appellant was a minor of 17 years in form one. e. That the learned trial magistrate erred in law and fact by convicting the appellant without considering his defense and weighing it against the prosecution f. That the learned trial magistrate applied wrong principle during sentencing by meeting out a manifestly harsh and excessive sentence of 10 years instead of 3 years imprisonment as required by law since appellant was also a minor He filed Amended Grounds of Appeal (without leave) as follows; a. The learned trial magistrate erred in matters of law and fact by convicting and sentencing the appellant to ten years imprisonment without appreciating that at the material time of commission of the offence the appellant was 16 years old in form one thus the conviction and sentence was in contravention of Article 53 of the constitution, and section 19 of children act and other provisions of the law b. That there was no consideration of the fact that he was a minor during the commission of the offence when he was sentenced. As a result, the court did not take into account section 191 of the Children’s Act in sentencing the Appellant. c. That the learned trial Magistrate erred in matters of law and fact by convicting the appellant on medical evidence that failed to meet the threshold to prove penetration d. That the learned trail magistrate erred in matters of law and fact by convicting the appellant to serve 10 years without taking into consideration the ALIBI defence adduced e. That the learned trail magistrate erred in matters of law and fact by convicting the appellant to serve 10 years imprisonment despite that the key witness were not called. 6. The appeal was canvassed by way of written submissions. 7. In his submissions the Applicant argued all his grounds of appeal merged together. That the trial magistrate aired in law and fact by convicting and sentencing the appellant to 10 years imprisonment without appreciating that the material time of the offence the Appellant was 16 years 11 months old. Thus the conviction of sentence was in contravention of Article 53 of the constitution and Section 191 of the Children Act. 8. He further submitted that the Magistrate failed to consider his alibi defense. It was his testimony that he was not at the scene and he called DW2 to support his defense. It was his case that it was not his duty to proof his alibi. 9. He challenged the conviction on the basis that the trial court relied on medical evidence which did not meet the threshold of proof of penetration. Further, key witnesses were not called stating that mama S also known as NN ought to have been called. 10. On their part the Respondent submitted that the prosecution proved its case before reasonable doubt. It is submitted that the age of the minor was proved through the production of a birth certificate which showed the victim was 12 years old at the time of the incident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6497/eng@2026-04-29 2

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11. Regarding penetration counsel submitted that PW5 and PW7, the medical officers testified that the child was examined and treated at Timau sub-county Hospital and the findings were captured in the PRC form and the P3 form. The conclusions in the reports was that indeed penetration had occurred. 12. Further that penetration was proved through the victims testimony where she clearly stated that the Appellant held her by hand and led her to his house tied her hands with a rope and he made her lie on the sit whereby he removed her clothes and he removed his and put his “thing for urinating in her thing for urinating”. It was counsel’s submission that penetration may be proved by direct or circumstantial evidence. 13. On the question of identification, it is submitted that this was through recognition as the Appellant was well known to the victim him being a neighbor. 14. Regarding the question whether the defense was considered, it is submitted that the Appellant that he gave an alibi defense it is submitted that he did not introduce an alibi early in the proceedings and the defense was a mere denial and the alibi an afterthought. 15. Regarding the sentence, it is submitted that during sentencing the trial court is called upon to weigh between the mitigating factors and the aggravating circumstances on the complaint/victim’s side. Further that the Appellant court should not should not easily interfere with the sentence unless there is improper exercise of the discretion in sentencing. It is urged that the sentence of 10 years imposed on the Appellant is proper. 16. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. 17. This duty was set out in Okeno vs. Republic [1972] EA by the Court of Appeal as follows; “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). 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 finding and conclusion; it must make its own findings and draw its own 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, see Peters vs. Sunday Post [1958] E.A 424.” 18. A summary of the evidence adduced at the trial court is as follows. 19. PW1 stated that the appellant pulled her to his house where he placed her on a seat, removed her clothes and he removed his and “he put his thing for urinating in her thing for urinating”. She stated that she screamed once and the accused inserted socks inside her mouth. That after the ordeal he took her out. She informed mama S who is NN, a neighbor, what had happened. N contacted her parents who came and she was taken to police station and thereafter to hospital. She knew the accused from the time they moved into the plot. 20. PW2 testified that PW1 was her daughter. That she was called from work by N and informed about the incident. She went home and found the complainant crying and the complainant told her that Mureithi had pulled her to his house, tied up her hand and blocked her mouth with a socks before he https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6497/eng@2026-04-29 3

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sexually penetrated her. She took the complainant to Timau police where they were issued with a note to hospital. Mureithi was a neighbor. 21. PW3 stated that the complainant told him that Mureithi had done bad manners to her. The matter was reported to police. The complainant was his step daughter. After the ordeal the Appellant disappeared until 2020 when PW3 traced him and alerted the Chief. 22. PW5 appeared in court to testify on behalf of Dr. Kirimi but her evidence was objected to and the court directed that Dr Kirimi was to appear himself. 23. PW6 was the investigating officer she produced a copy of the birth certificate and the investigation diary. 24. PW7, Dr. Kirimi Eric, testified that he examined the victim who had a history of sexual assault. On genital examination, she had whitish discharge and hymen was torn confirming penetration. There were a lot of pulse cells. He concluded that she was defiled and there was vaginal penetration. He produced the P3 and PRC forms as exhibits. On cross examination he indicated that the examination was indicative of recent penetration. 25. On being placed on his defence the Appellant in a sworn statement denied the offense. He stated that he was on duty 1km from home. He had been given work by one Mzee M. He had gone there at 8am and came back home at 5.30pm. He found the complainant’s father with a panga and who threatened him and he ran away. He went to his Aunt’s place in Mau and he stayed there for 5 months. He returned back and after 2 days the chief came to him. He was taken to police station and he was charged. 26. DW2 said that in March 2020 he had a shamba where accused was weeding and preventing monkeys from destroying the crops. On 14.7.2020 accused was in his shamba from 8.00am-5.00pm. 27. I have considered the evidence adduced at the trial court. In so doing, I have taken cognizance that I neither saw nor heard the witnesses testify and have given due allowance for that fact. I have taken into account the submissions made and case law cited. I have had due regard to the applicable law. Of determination is whether the prosecution proved its case to the required degree, and, if in the affirmative, whether the sentence imposed was appropriate in the circumstances of the case. 28. PW1 narrated in great detail how the Appellant held her hand and led her to his house where he tied her both hands with a rope from behind. They were immediate neighbours. He laid her on a seat and removed her clothes. He also removed his clothes and he pulled (sic) his thing of urinating in hers for urinating. She screamed once and the Appellant inserted socks in her mouth. After the ordeal he removed her out. She went and informed mama S also known as NN, a neighbour who contacted her parents. She was taken to the police station and to hospital. Dr Kirimi testified that he found evidence of recent penetration on examining the minor. In defence, the Appellant stated that he was on duty a kilometre away from home. He had been given work by one Mzee M. He returned at 5.30pm. He found the complainant's father with a panga and he was threatened and he ran away. He went to his aunt's at Mau and stayed for 5 months. He returned and after 2 days the chief came for him. He was taken to the police station and charged. 29. Looking at the evidence herein, it is clear that the evidence of PW1 was firm and consistent and she narrated in graphic details what was done to her by a person she knew, a neighbour. Medical evidence corroborates her evidence. 30. The Appellant gave an alibi defence. Though the Appellant had no duty to prove his innocence, once a cogent case was put up by the prosecution, he had a duty to raise a defence that would displace the prosecution’s evidence or at the very least, create doubts in the prosecution’s case. His alibi is hollow and not corroborated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6497/eng@2026-04-29 4

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31. It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; (see Karanja V R, [1983] KLR 501) where the court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. 32. The post offence conduct by the Appellant, though not by itself incriminatory, supports the prosecution case. The Appellant disappeared from the area for more than 5 months after the incident. His explanation for this is bizzare. If he was threatened, why did he not seek the protection of the law if he had nothing to do with the offence? He does not even go to his rural home but to an aunt's. One can safely infer that he was running away from the law. 33. The Appellant, in his written submissions on appeal, introduced a new allegation that he was aged 17 years at the time the offence was committed and therefore ought to have been treated as a child offender. The record of the trial court, however, tells a different story. At no point during the plea taking, the prosecution case, the defence hearing or even mitigation did the Appellant raise the issue of being a minor. Equally, his witness, DW2, who testified in his defence, never alluded to the Appellant being under the age of eighteen years. 34. This Court notes that the issue is being raised for the very first time on appeal. Consequently, the prosecution was denied the opportunity to test the allegation through cross-examination or by availing rebuttal evidence such as age assessment reports, birth records or other documentary proof. Litigation cannot be conducted by ambush, particularly in criminal proceedings where factual assertions must be subjected to scrutiny before the trial court. 35. In Cosmas Cheruiyot v Republic, [2022] eKLR the High Court rejected a similar attempt by an appellant to introduce the issue of age at the appellate stage and stated: “ The Appellant is trying to introduce new evidence at appeal stage and I find that the same is an afterthought. 36. The same reasoning applies with equal force in the present appeal. Had the Appellant genuinely been a minor at the time of the offence, nothing would have been easier than raising the matter before the trial court where the issue could properly have been investigated and determined. 37. The Court further observes that an accused person who seeks the benefit of treatment as a child offender bears at least an evidential burden to place material before the court showing that he was below the age of eighteen years. Mere statements from the bar, unsupported by evidence, cannot suffice. The appellate court is confined to the evidentiary record that was before the trial court unless leave is sought to adduce additional evidence, which was not done in this case. 38. Accordingly, I find the allegation that the Appellant was aged 17 years at the time of commission of the offence to be an afterthought, lacking evidential foundation and incapable of upsetting the conviction and sentence imposed by the trial court. 39. The prosecution's case is watertight and the finding by the lower court on the guilt of the Appellant was spot on. The conviction was based on credible and sufficient evidence. 40. Turning to the propriety of the sentence imposed, I note the Appellant, though alluding to dissatisfaction with the sentence, does not raise salient grounds challenging the sentence. He was convicted under Section 8(3) of the sexual offences Act where the sentence provided in the law https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6497/eng@2026-04-29 5

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is imprisonment for a term not less than 20 years. The Appellant was sentenced to 10 years imprisonment. 41. The principles guiding interference with sentencing by the appellate Court were properly, in my view, set out in S vs. Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that: “ A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate” 42. Similarly, in Mokela vs. The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that: “ It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.” 43. The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, [1954] EACA 270, pronounced itself on this issue as follows:“ The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.” 44. In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:“ sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka – vs- R. (1989 KLR 306)” 45. Further guidance on the matter is found in the court of Appeal decision in Bernard Kimani Gacheru vs. Republic [2002] eKLR where the court restated that: “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6497/eng@2026-04-29 6

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sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” 46. It is clear that the court was manifestly lenient when it sentenced the Appellant to 10 years imprisonment as opposed to the minimum provided in the Act. He should consider himself lucky. 47. The Supreme has affirmed the legality of the mandatory sentences in the Sexual offences in its recent decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024). The court stated; “ We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law…………… 68. Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence. 48. The trial court seemed oblivious of this development in the law. I would be inclined to enhance the sentence herein. However, as the state has not sought enhancement and for the fact that no notice of enhancement was served, I will let the matter lie. 49. With the result that the appeal lacks merit in its entirety. The same is hereby dismissed. DATED SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026 A.K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6497/eng@2026-04-29 7

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