Benson Muiruri Mwangi v Director of Public Prosecution

appellant, whom she knew as Muiruri, came after K had gone home and asked her to follow him so that he could show her a bicycle at Kiruka area. She stated that they walked through tea bushes and that when she attempted to go back, the appellant held her hands and fingers. PW1 further testified that the appellant took her to his house at Muigania, closed the door, left briefly, and later returned. That the appellant closed the door, took her to the bedroom, placed her on the bed, removed her skirt and undergarments, removed his own clothes, and defiled her. She stated that she felt pain. Thereafter, the appellant allowed her to dress and escorted her back to the road. That she found her siblings home but her parents were not at home and she initially feared telling her mother. She later told her mother on Friday after her mother saw two cakes which the appellant had allegedly bought for her and asked who had bought them. That thereafter, her mother then took her to Kirwara Sub-District Hospital and she produced the treatment notes and the P3 form in court. PW1 identified the appellant in court and stated that she knew him before the incident. 5. PW2 was HMM, the complainant’s mother. She testified that on 22nd February 2012 at about 6.00 p.m., she returned home from taking tea to the buying center and found the complainant with K. That she noticed the complainant appeared frightened and had not changed her clothes. Upon checking the complainant’s school bag, she found that it did not have sufficient books and also found two cakes. When she asked where the cakes had come from, the complainant initially hesitated but eventually told her that they had been bought by Muiruri. PW2 testified that upon further inquiry, the complainant disclosed that while she was going to clean the church, Muiruri had deceived her by saying that he would show her something, took her through the tea bushes, and led her to his house at Muigania. PW2 stated that she later took the complainant to Kirwara Sub-District Hospital on 23rd February 2012, where she was treated. She was informed that the complainant’s vagina had been interfered with. She then proceeded to Githumu Police Station. She further stated that she was later issued with a P3 form on 24th and that she knew the appellant physically as he used to work in the area. The complainant also showed her the appellant’s home. 6. PW3 was Michael K Gachanja, a medical officer at Kirwara Sub-District Hospital. He testified that the complainant came to the hospital on 23rd February 2012 and alleged that she had been raped by a man known to her about six days earlier. On examination, there was evidence of penetration. He observed that she had a discharge, the hymen was torn, and there were pus cells. No spermatozoa were seen. He classified the degree of injury as harm and concluded that the complainant had been defiled. He produced the medical treatment card and P3 form in court. 7. PW4 was No. 8xxx3 PC Julius Kori, then attached to Githumu Police Station. He testified that on 25th February 2012 at about 1.20 p.m., the complainant, accompanied by her mother, reported the incident at the station. He booked the report and commenced investigations. His investigations established that on 18th February 2012, the appellant lured the complainant to his house, where he allegedly defiled her. He further testified that the complainant’s mother later discovered two cakes in the complainant’s school bag, and upon inquiry, the complainant stated that they had been bought by the appellant after the incident. 8. PW4 stated that on 23rd February 2012, the complainant was taken to Kirwara Sub-District Hospital, where she was treated, discharged and a P3 form issued. He further testified that on 2nd March 2012, he accompanied the complainant and another officer to the appellant’s home, where they found the appellant asleep, woke him up, and arrested him. According to PW4, the complainant positively identified the appellant. He escorted the appellant to Githumu Police Station and thereafter charged him in court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6525/eng@2026-05-08 2

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9. That marked the close of the prosecution case. Having considered the evidence adduced, the trial court held that a prima facie case had been established against the accused person and he was accordingly put on his defence. Defence Case 10. DW1 was the appellant, Benson Muiruri Mwangi. He testified that he had left his home in January to look for work and went to a place called Giithu, where he obtained work cleaning motorcycles and painting for about three weeks. DW1 further testified that the complainant’s mother used to come and ask him for lunch, but he declined because he had a family. According to him, from then on, she acted in bad faith and said bad things about him. He stated that throughout February he never spoke to her, and that in March he was arrested by police officers. Upon inquiry at Githumu Police Station, he was informed that he had defiled a small girl, an allegation he denied. 11. That marked the close of the defence case. Upon considering the entirety of the evidence on record, the trial court, in its judgment delivered on 29th June 2012, found the appellant guilty on the first Count, convicted him, and sentenced him to life imprisonment. The Appeal 12. 13. Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal vide a petition of appeal filed in court on 3rd February 2023, citing the following five grounds: a. That, the learned trial magistrate erred in points of law and facts by failing to find that the elements of defilement were not proved beyond reasonable doubt. b. That, the learned trial magistrate erred in points of law and facts by failing to find that the charge I was charged with was defective in nature. c. That, the learned trial magistrate erred in points of law and facts by failing to find that the case of defilement was not proved beyond reasonable doubt as required by the law. d. That, the learned trial magistrate erred in points of law and facts by failing to find that the prosecution’s evidence was tainted with material contradictions. e. That, the learned trial magistrate erred in law and facts in failing to find that there existed a grudge between the appellant and the victim’s family and the probable reason for implication with this offence. The appeal was canvassed by way of written submissions. On record are submissions by the appellant and submissions dated 9th January 2026, filed by the respondent; both of which this court has duly considered. Appellant’s Submissions 14. The appellant submitted that the sentence of life imprisonment was manifestly excessive, indeterminate, and inconsistent with the constitutional principles of dignity and rehabilitation under Article 28 of the Constitution. He argued that life imprisonment is open-ended and denies a convict a meaningful opportunity for reintegration into society. He relied on Karanja Muiruri v Republic [2021], Julius Kitsao Manyaso v Republic, Criminal Appeal No. 12 of 2021, and Evans Nyamai Ayako v Republic, Criminal Appeal No. 22 of 2018, where he averred that the Court of Appeal held that life imprisonment does not mean imprisonment for the natural life of the convict, but translates to thirty years’ imprisonment. Further reference was placed on paragraph 23.10 of the Sentencing Guidelines, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6525/eng@2026-05-08 3

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2023 on consistency, certainty and proportionality in sentencing. He urged the court to consider his rehabilitation in prison, including Grade I, II and III qualifications in carpentry and joinery. 15. The appellant further submitted that penetration, as defined under section 2 of the Sexual Offences Act, was not proved beyond reasonable doubt. He argued that the medical evidence did not conclusively show that penetration occurred or that it was attributable to him. He contended that the complainant was examined several days after the alleged incident, there were no fresh injuries, no spermatozoa were seen, and PW3 did not state when the hymen was torn. He relied on P.W.K v Republic [2012] eKLR for the proposition that a torn or absent hymen is not, by itself, conclusive proof of sexual intercourse. 16. As to whether the prosecution proved its case beyond reasonable doubt, the appellant submitted that the prosecution case was contradictory, uncorroborated, and marred by falsehoods and afterthoughts. He argued that the evidence did not meet the standard of proof beyond reasonable doubt as stated in Miller v Minister of Pensions [1947] 2 All ER 372. 17. He further submitted that the case was actuated by malice and a personal grudge between him and PW2, the complainant’s mother. He relied on Eliud Waweru v Republic [2019] eKLR, contending that sexual offence allegations may, in some instances, be used to settle personal scores. He prayed for the court to allow the appeal, quash the conviction, set aside the sentence, and acquit him. Respondent’s Submissions. 18. The respondent submitted that the ingredients of defilement were conclusively proven in the trial court. On age of the victim, counsel submitted that PW1, during voire dire examination and when testifying stated that she was 9 years old and was in Class 4 at [Particulars Withheld] primary School. The trial court, having conducted a voire dire examination, found that she understood the nature of an oath and allowed her to give sworn testimony. PW3, the medical officer, confirmed that the victim was aged 8 years when he examined her on 23rd February 2012. Counsel relied on Edwin Nyambogo Onsongo [2016] eKLR for the principle that age may be proved by way of documents, birth certificate, baptism card, or by oral evidence of the child if sufficiently intelligent, or by evidence of guardians, parents, or medical evidence. Counsel further submitted that the issue of age was not contested by the appellant during the trial and was not disputed in the appeal. 19. On proof of penetration, counsel submitted that PW1 gave a detailed account of the ordeal, testifying that the appellant took her to his house, locked the door, took her to the bedroom, placed her on the bed, removed her undergarments, and put his "thing which he uses for urinating" in her private part, "the whole of it," causing her a lot of pain. PW3, the medical officer, testified that upon examination, the complainant had foul-smelling discharge and pus cells, and that her hymen was torn. PW3 concluded that there was evidence of penetration and produced the treatment card and P3 form as exhibits. Counsel argued that the oral testimony of the doctor was tested during cross-examination and was not rebutted. 20. On identification of the perpetrator, counsel submitted that the victim met the appellant at a shop called Somboa, where he asked her to accompany him to see a bicycle. The victim knew the appellant by name as "Muiruri" and stated that she knew him before the time of the offence. She later met the appellant when she was going to school, and he purchased two cakes for her. The victim pointed out the appellant in the dock and also identified him to the police during the arrest. PW2, the victim's mother, testified that the victim told her what "Muiruri the painter" had done and that she knew the appellant physically as he used to work in the area. Counsel noted that the appellant himself, in his defence, stated that he was a painter, thereby confirming that the victim knew him before the incident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6525/eng@2026-05-08 4

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Counsel relied on MW v Republic [2019] eKLR for the proposition that recognition, as opposed to identification of a stranger, drastically reduces the possibility of mistaken identity. 21. On the appellant's contention regarding corroboration under Section 124 of the Evidence Act, counsel submitted that the section provides an exemption to the general rule of corroboration in sexual offences, as such offences usually occur in private and often lack eye witnesses. Counsel noted that in the instant case, the victim's evidence of defilement was corroborated by medical evidence. He further relied on Kibangeny arap Koli v R [1959] EA for the principle that no corroboration is required if the evidence of a child is sworn, and on Joseph Ndeto Kimunyu v Republic [2018] eKLR for the principle that a court may convict on the basis of uncorroborated testimony of a victim of sexual violence if satisfied that the victim is telling the truth. 22. On the appellant's defence of grudge and framing, counsel submitted that the appellant's allegation that he was framed by the victim's mother because he declined to give her lunch was a mere afterthought, averring that the appellant did not call any witness to corroborate his narrative and that if the issue of grudge was genuine, it ought to have been introduced during the prosecution's case, especially when PW2 was testifying. 23. Regarding the sentence, counsel submitted that Section 8(2) of the Sexual Offences Act prescribes life imprisonment as the punishment for defilement of a child aged eleven years or less. That the victim herein was aged 8 years. Counsel submitted that the learned trial magistrate imposed the minimum sentence prescribed by the law, which was appropriate in the circumstances, and prayed that the appeal be dismissed in its entirety and sentence upheld. Analysis and Determination 24. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR where the Court of Appeal held that: “ the duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellate court may depending on the facts and circumstances of the case, come to the same conclusion as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.’’ 25. I have considered the lower court proceedings, the judgment of the trial court, the grounds of appeal, and the submissions filed by the parties. In my view, the issues that fall for determination are: i. Whether the prosecution proved the offence of defilement against the appellant beyond reasonable doubt. ii. Whether the appellant's defence raised reasonable doubt and was properly considered by the trial court. iii. Whether the sentence imposed was lawful and/or excessive in the circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6525/eng@2026-05-08 5

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Issue I: Whether the prosecution proved the offence of defilement against the appellant beyond reasonable doubt. 26. 27. 28. The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides: “ 8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(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.” The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: a. Age of the complainant b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act c. Positive identification of the assailant. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) EKLR stated as follows in respect of proving the age of a victim in cases of defilement: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable 29. The appellant did not seriously contest the issue of age in his submissions, but it is incumbent upon this court to satisfy itself that the trial court properly established this foundational element. The complainant, PW1, testified under oath after a voire dire examination. She stated that she was a pupil at [Particulars Withheld] primary School in class four. On the date of her testimony (20th April 2012), she stated that she was 9 years old. PW3, the medical officer who examined the complainant on 23rd February 2012, noted that the complainant was aged 8 years at the time of examination. The incident occurred on 18th February 2012, approximately five days prior to the medical examination. In the instant case, the complainant's oral testimony, corroborated by the medical officer's observation. I therefore find that the prosecution proved the age of the complainant beyond reasonable doubt. 30. The appellant vigorously contested the proof of penetration, submitting that the medical evidence was inconclusive. He pointed to the absence of fresh injuries, the absence of spermatozoa, and the failure of the clinical officer to state precisely when the hymen was torn. He relied on P.W.K. v Republic [2012] eKLR for the proposition that a torn or absent hymen is not, by itself, conclusive proof of sexual intercourse. 31. I have carefully re-evaluated the evidence on record. PW1 gave a graphic and detailed account of the ordeal. She testified that the appellant took her to his house, locked the door, took her to the bedroom, placed her on the bed, removed her undergarments, and put his "thing which he uses for urinating" into her private part, "the whole of it." She stated that she felt a lot of pain. This testimony, coming https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6525/eng@2026-05-08 6

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from a child of tender years, was remarkably consistent and detailed. She did not waver during crossexamination. 32. 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." The definition does not require proof of ejaculation, nor does it require the presence of spermatozoa, nor does it require the existence of fresh physical injuries. The absence of spermatozoa is not fatal to conviction. In Joseph Hare Mumba v Republic [2016] KEHC 2125 (KLR), the court held: “ There is no provision under the law that defilement cases must be reported within a certain given period or that if there is no spermatozoa then there is no defilement. Sometimes defilers use condom and no spermatozoa is found. It also depends on the time taken to have the victim taken for medical examination. The evidence has to be taken in totality and not in isolation." 33. PW3, the medical officer, testified that upon examination, the complainant had a foul-smelling discharge, pus cells, and a torn hymen. He concluded that there was evidence of penetration. This medical evidence corroborated the complainant's testimony of penetration. Regarding the appellant's reliance on P.W.K. v Republic (supra), that authority stands for the proposition that a torn hymen is not automatically proof of sexual intercourse, as there are other non-sexual causes of hymenal rupture. However, in the present case, the prosecution did not rely solely on the torn hymen. There was the complainant's direct, sworn testimony describing the act of penetration in clear terms, and the medical evidence of discharge and pus cells which were consistent with recent sexual activity. The trial court was therefore correct to conclude that penetration had been proved. 34. On the third ingredient, the appellant did not challenge the fact that the complainant knew him before the incident. The complainant referred to him as "Muiruri" and stated that she knew him prior to the incident. PW2, the complainant's mother, testified that she knew the appellant physically as he worked in the area. The appellant himself, in his defence, admitted that he was a painter, confirming that he was known in the locality. 35. This was not a case of identification of a stranger, but rather recognition of a person well known to the complainant. The Court of Appeal in Anjononi & others v Republic (1976-1980) drew a clear distinction between identification and recognition, holding that recognition of a known person is more reliable than identification of a stranger. The court stated that recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger. Since the complainant's identification of the appellant was that of recognition, which drastically reduces the possibility of mistaken identity, I therefore hold that the trial court was correct to accept the complainant's evidence on identification. 36. The appellant further submitted that the prosecution case was contradictory, uncorroborated, and marred by falsehoods. On the issue of corroboration, Section 124 of the Evidence Act provides that in criminal cases involving sexual offences, the court may convict on the sole evidence of the victim if, for reasons to be recorded in the proceedings, the court is satisfied that the victim is telling the truth. The proviso to Section 124 states: “ 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6525/eng@2026-05-08 7

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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." 37. In Lumbasi v Republic (Criminal Appeal 17 of 2016) [2016] KEHC 2942 (KLR), the High Court held that although corroboration is generally required in respect of the evidence of minors, the proviso to section 124 of the Evidence Act creates an exception in sexual offences. The court stated that corroboration was still required on evidence by minors, but not mandatory in sexual offences as long as the witness was truthful and reasons were recorded. 38. The trial court conducted a voire dire examination and found that the complainant understood the nature of an oath and was competent to give sworn testimony. The court, having observed the complainant's demeanor, recorded its satisfaction that she was telling the truth. The complainant's testimony was also corroborated by the medical evidence. Issue II: Whether the appellant's defence raised reasonable doubt and was properly considered by the trial court 39. The appellant's defence was two-pronged: first, a simple denial of the offence; second, an allegation that he was framed by PW2, the complainant's mother, because he had declined to give her lunch when she came to his workplace asking for it. I have carefully considered this defence. The appellant did not call any witness to corroborate his narrative that the grudge was genuine. In the instant case, there is no evidence of any grudge beyond the appellant's bare assertion. The complainant's mother, PW2, testified that she knew the appellant physically as he worked in the area, but she did not express any animosity towards him. The report to the police was made by the complainant and her mother after the discovery of the cakes and after the complainant's disclosure. There is no evidence that the complainant's mother had any motive to fabricate such a serious charge against the appellant. Moreover, in my view, a child of 8 years could not have been coached to give such a detailed and consistent account of the defilement without having actually experienced it. 40. The court in Robert Omeri v Republic [2017] KEHC 2013 (KLR) held that a defence of grudge must be proved by the accused, and that the court is entitled to reject it where there is no credible evidence to support it. I therefore find that the appellant's defence was properly considered by the trial court and was rightly rejected as it did not raise any reasonable doubt as to the prosecution's case. Issue III: Whether the sentence imposed was lawful and/or excessive in the circumstances 41. The trial court sentenced the appellant to life imprisonment. The appellant challenges this sentence on two fronts: first, that it is excessive and does not accord with the constitutional principles of dignity and rehabilitation; second, that recent court decisions have held that life imprisonment equates to thirty years' imprisonment. 42. Section 8(2) of the Sexual Offences Act provides: “ 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." 43. The complainant in this case was aged 8 years. The sentence imposed by the trial court is the prescribed sentence under the statute. Recently, the Supreme Court 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) discussed the nature of mandatory sentences under the Sexual Offences Act and held that the sentences prescribed are minimum sentences, not absolute mandatory sentences that oust judicial discretion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6525/eng@2026-05-08 8

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44. However, the appellant's submission that life imprisonment equates to thirty years is a misstatement of the current law. The Court of Appeal decisions in Julius Kitsao Manyeso v Republic [2023] KECA 827 (KLR) and Evans Nyamai Ayako v Republic [2023] KECA 1563 (KLR), which the appellant relies upon, were overturned by the Supreme Court in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR). The Supreme Court held that the Court of Appeal acted without jurisdiction by addressing the constitutionality of life imprisonment for the first time on appeal, and that the duty to define the parameters of life imprisonment rests solely with Parliament. This ground of appeal therefore fails. Disposition 45. Consequently, the appeal against conviction and sentence is hereby dismissed. The conviction and sentence of the trial court is hereby upheld. 46. Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 8TH DAY OF MAY, 2026. S.N MBUNGI JUDGE In the presence of:CA: Angog’a/Velma https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6525/eng@2026-05-08 9

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