Wambua Masaku v Republic

b. That the learned trial magistrate erred in law and fact by relying on hearsay medical evidence from a clinical officer (PW5) who was not the original examiner of the complainant, thereby prejudicing the Appellant’s right to a fair trial. c. That the learned trial magistrate erred in law and fact by failing to consider the significant delay of over 40 days between the alleged offence and the complainant’s medical examination, which rendered the medical findings inconclusive and unreliable. d. That the learned trial magistrate erred in law by failing to address discrepancies in the prosecution’s evidence, particularly the lack of charges or alternative counts for pw2, who was also alleged to have been defiled. e. That the learned trial magistrate erred in law and fact by disregarding the appellant’s defence, which raised substantive doubt about the prosecution’s case and established a plausible alternative explanation. Appellant’s Submissions 4. The Appeal was canvassed through written submissions. The Appellant by his submissions dated 15th January, 2025 argued that the trial magistrate erred in finding the prosecution had proved its case beyond reasonable doubt despite the evidence being inconclusive, and cited the medical findings which revealed an old hymen scar, which was not conclusively linked to him or the alleged date of the offence. Moreover, the clinical officer who testified (PW-5) relied on records prepared by another examiner who did not testify, which amounted to hearsay and inadmissible evidence under the Evidence Act. Whereas the delay of over 40 days between the alleged offence and the medical examination undermined the reliability of the findings, leaving room for alternative explanations. 5. Pointing to inconsistencies in the prosecution case, with regard to the testimony of PW-2, who alleged defilement under similar circumstances but the said offence, was not included in the charge sheet. According to the Appellant, this discrepancy prejudiced his defence and created confusion, as he was effectively tried for unpreferred charges. Quoting Mutuku & Another v Republic [1982] KLR 203, for the statement that “the introduction of evidence unrelated to the charges framed in the charge sheet confuses the issues before the court and prejudices the accused’’. He contended that the trial magistrate failed to address this anomaly, and whether PW2’s evidence should have been treated as corroborative or excluded altogether. 6. Finally, the Appellant argued that the trial court disregarded his defence, which raised substantive doubts about the credibility of the complainant’s testimony and offered a plausible alternative explanation. He therefore urged the court to allow the appeal, quashe the conviction, and set aside the sentence. Respondent’s submissions. 7. The Respondent opposed the appeal through submissions dated 4th June, 2025. Taking the position that the case was properly tried, with credible and sufficient evidence proving the charge beyond reasonable doubt with all the key ingredients of the offence—age, penetration, and identification— being established. Regarding proof of age as a necessary ingredient as held Alfayo Gombe Okello vs. Republic Cr. App. No. 203 of 2009, stating that the victim testified that she was born on 7th January 2008, and her birth certificate was produced at the trial. 8. In support of the element of penetration, the Respondent recalled testimony by the victim on how the Appellant lured her and her friend to his house, threatened them, and then inserted his penis into https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6562/eng@2026-05-14 2

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her vagina. Which was corroborated by medical evidence confirming that her hymen had been broken. And as regards, identity of the perpetrator, the victim recounted several visits to the Appellant’s house prior to the incident, which occurred in daylight. And as the Appellant was well known to her, the prosecution that identification was by recognition, eliminating any possibility of mistaken identity. And that the trial magistrate considered and dismissed the Appellant’s defence, which was inconsistent with the date of the offence. 9. In defence of the sentence, the Respondent countered that Section 8(3) of the Sexual Offences Act provides for a mandatory minimum sentence of 20 years imprisonment where the victim is between 12 and 15 years old. Pointing out that the sentence awarded was lawful as the victim was proved to be 13 years at the time of the offence, citing George Hezron Mwakio v Republic (2010) eKLR. 10. In conclusion, the Respondent submitted that the conviction was properly founded, the sentence was lawful and deserved, and therefore the appeal should be dismissed in its entirety with the conviction and sentence upheld. Analysis and Determination 11. This being a first appeal, the court is guided by the timeless principles expressed in Okeno -vs- Republic (1972) E.A 32:- , 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) EA. 424.” See also Pandya v R {1957} EA 336; Ruwalla v R (1957) EA 570. 12. Similarly in David Njuguna Wairimu v. Republic [2010] eKLR the Court of Appeal observed that: The duty of the first appellate court is to analyse 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.’’ 13. A precis of the evidence before the trial court was as follows. LW, (PW1) testified that she was aged 13 years in 2021, was a pupil in Standard six at [Particulars Withheld] school and attended a church known as [Particulars Withheld] at Kitengela where she lived with her mother in the material period. In the months preceding the incident on 23.05.2021, she and her school mate and friend PW2 had been befriended by the Appellant who plied them with treats and had on several occasions invited them to his house. PW2 had known the Appellant’s wife, one Nice from whom he was apparently estranged in that period. 14. On the material date, PW1 and PW2 went to church at 11am. After church, they both went home. They again met up and were heading back to church for fellowship when they met the Appellant who invited them to his house, and they obliged. He bought soft drinks for the girls who accompanied him https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6562/eng@2026-05-14 3

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to his one-roomed tinned house in [Particulars Withheld], Kitengela. PW1 made some food which they all ate before the Appellant propositioned them for sex and when they baulked he threatened to kill them, before promising them Kshs. 150/- each for sex. 15. The Appellant then undressed and had sex with both girls in turns after asking each to undress and lie on her back on the mattress on the floor. PW1 described how the Appellant inserted his penis into her vagina and that the intercourse took a few minutes after which he gave her Kshs. 150/-. After repeating the same thing with PW2, he instructed them to clean themselves from the waist downwards after which they left his house and went to PW2’s house. The two girls continued to relate with the Appellant who plied them with treats and money gifts. 16. The matter came to light when a youth pastor at [Particulars Withheld], one Bernard Muiya (PW4), became unsettled after observing PW1 and PW2 in possession of money and other gift items and on questioning them, they admitted to having a boyfriend named Wambua who treated them with the items and money. And later when he saw the two girls in a workshop with a man who was fondling intimate parts of their bodies, and whom they later confirmed was Wambua he took action. And promptly informed JKM, PW2’s father on 3.07.2021, and he in turn reported the matter at the Kitengela Police Station on 4.07.2021. During cross-examination, PW4 clarified that he had seen the Appellant in the company of the two minors in June, and that it was the girls who identified him as Wambua. On his part, he denied any inappropriate involvement with the minors. 17. PW1 and PW2 were escorted to Nairobi Women’s Hospital where they were examined by a doctor. John Njuguna (PW5), a clinician at the Hospital, testifying on behalf of his colleague Christine Kaguli, who had completed the medical reports in respect of PW1 was allowed under Sections 33 and 77 of the Evidence Act to produce the medical documents. He stated that PW1 was examined on 4th July 2021, more than a month after the alleged defilement. The examination revealed no recent injuries, though her hymen was broken with a healed scar. He produced the GVRC form as P.Exh 3, the PRC form as P.Exh 2, and the P3 form as P.Exh 1. During cross-examination, he acknowledged the delay in medical examination and confirmed that the minor was brought to the hospital at night on 4th July 2021. 18. Sergeant Peninah Mumbua (PW6) was the investigating officer. She testified that the case was reported on 3rd July 2021 and involved two minors aged 13 years. She had issued P3 forms, and upon medical examination, the defilement was confirmed. She produced PW1’s birth certificate as P.Exh. 4, showing she was 13 years old at the material time. 19. Upon being placed on his defence the Appellant gave an unsworn statement to the effect he lived in Kitengela and had travelled to Machakos on 22nd May 2021 to attend his mother-in-law’s burial in the company of his wife and son and only returned home on 24th May 2021,. He narrated repeated conflicts with his wife allegedly involving PW4, whom he accused of attempting to take his wife. He claimed that the pastor framed him by involving the minors and orchestrating his arrest. He denied that he defiled the girls, saying that he was a married man and had been wrongly convicted in the case involving PW2. He stated that the allegations against him were fabricated to ruin his marriage. 20. The key question for determination is whether the ingredients of the offence of defilement were proved, namely, the age of the minor, penetration and the identity of the perpetrator. As regards the former ingredient, PW1 stated that she was 13 years old, as shown in medical records produced by PW5 while the birth certificate (P.Exh. 4) produced by PW6 showed that she was born on 7th January, 2008. This evidence constitutes adequate proof that PW1 was aged 13 years at the time of the incident in question. In the case of Mwalongo Chichoro Mwanjembe v Republic, Msa Cr.App. No. 24 of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6562/eng@2026-05-14 4

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2015 (UR) the Court of Appeal addressed the question of age of complainants in defilement cases as follows ;“ …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 documentary 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. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R, Cr. Appeal No.19 of 2014 and Omar Uche v R,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim. Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable…” 21. Concerning identification, PW1 and PW2 stated that they knew the Appellant who had befriended them and had visited him on several occasions at his house before the material date. The Appellant on his part admitted that the two minors knew him, being friends of his wife. The Appellant was therefore not a stranger to the minors and the material incident occurred in daytime. This was therefore a case of recognition, which is more assuring, satisfactory and reliable than identification of a stranger. See Anjononi & 2 Others v Republic [1980] eKLR. Especially due to the previous interactions between the Appellant and the minors as related by PW1 and PW2 and corroborated by PW4. It is apparent that the Appellant had over several months prior to the offence groomed the minors by plying them with money and gifts, and had become well acquainted with them. 22. Regarding penetration, PW1 narrated in detail the events of 23.05.2021 at the house of the Appellant, which PW2 confirmed in her evidence. None of them was shaken during cross-examination, and the trial court evidently believed them to be truthful witnesses. According to the witnesses, at his house, the Appellant, having undressed first instructed PW1 to undress and lie on her back on the mattress on the floor before proceeding to insert his penis into her vagina. She stated that she felt pain when this happened. Although the minors were examined on 4.07.2021, almost over one month since the incident, PW5 indicated that PW1 had a healed scar as her hymen had been breached. This, confirming testimony by the two minors regarding penetration. 23. The Appellant in his submissions has attacked the testimony by PW5 by asserting it amounted to hearsay evidence as the witness relied on records prepared by another clinician who did not testify. The record of the trial shows that the medical records were with the concurrence of the Appellant pursuant to an application made by the prosecution under Section 33 and 77 of the Evidence Act. Nothing turns on that issue. In any event under the proviso to Section 124 of the Evidence Act, the trial court having found PW1 and PW2 to believable witnesses, their evidence on penetration was adequate, even without corroboration to found a conviction for the offence preferred. See Kimanga vs Republic (2026) KECA 650 (KLR). 24. The Appellant’s further complaint that the inclusion of the evidence of PW2 created confusion, making it difficult for him to mount his defence are not borne out by the record of proceedings of the trial court. There was only one count of defilement and the charge particulars laid against the Appellant clearly related to LW, one victim and not two. This was not a case where it could be said that the charge was bad for duplicity; while PW1 testified as the complainant, PW2 was only a witness in the case https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6562/eng@2026-05-14 5

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and not a complainant. From his cross-examination of witnesses and defence, the Appellant clearly understood that although both minors testified that they were defiled at the same time, this particular trial related to PW1 and not PW2, in respect of whom he admitted to have been separately charged. 25. The trial court evidently accepted the prosecution evidence which on the face of it displaced the Appellant’s defence, principally an alibi, defence not canvassed with any of the prosecution witnesses. In Mwangirani vs Republic (2024) KECA 209(KLR), the Court of Appeal stated the following: “ The consistency with which this Court has dealt with the issue was emphasised in Wang’ombe v The Republic [1980] KLR 149, where this Court (Madan, Miller and Potter, JJA) held that: “ …in Ssentale vs. Uganda [1968] EA 365, 368 [Sir Udo Udoma CJ]…said that a prisoner who puts forwards an alibi as an answer to a charge does not thereby assume any burden of proving that answer; it is a misdirection to refer to any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout on the prosecution. We agree, we have ourselves said so on more than one occasion.” 26. The Court further stated that: We associate ourselves with the decision of the Supreme Court of Uganda, in Festo Androa Asenua vs. Uganda, Cr. App No. 1 of 1998 when it observed that: We should point out that in our experience in Criminal proceedings in this Country it is the tendency for accused persons to raise some sort of alibi always belatedly when such accused persons give evidence. At that stage the most the prosecution can do is to seek adjournment of the hearing of the case and investigate the alibi. But that may be too late. Although for the time being there is no statutory requirement for an accused person to disclose his case prior to presentation of his defence at the trial, or any prohibition of belated disclosure as in the UK statute cited above, such belated disclosure must go to the credibility of the defence. Although the appellant in this case put forth his alibi defence rather late in the trial, we cannot agree with counsel for the respondent that the alibi defence must be ignored. That defence must still be considered against the evidence adduced by the prosecution. Indeed, in Ganzi & 2 Others vs. Republic [2005] 1 KLR 52, this Court stated that where the defence of alibi is raised for the first time in the appellant’s defence and not when he pleaded to the charge, the correct approach is for the trial court to weigh the defence of alibi against the prosecution evidence...” 27. The trial court having weighed the alibi defence against the prosecution evidence accepted the latter and proceeded to convict the Appellant. On its own evaluation of the evidence and the last minute introduction of the alibi defence, this court is unable to fault the findings of the trial court. Based on the corroborative evidence by PW3, PW5 and PW6, and the accounts by PW1 and PW2, allegations that the latter two witnesses were involved in any dispute between the Appellant, his wife and PW4 and were roped into a scheme to lay false charges against him appear an implausible afterthought. The allegations and the assertion that he was in Machakos on the date of the offence were not canvassed by the Appellant with these prosecution witnesses during cross-examination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6562/eng@2026-05-14 6

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28. Upon reviewing the entire record, the court is satisfied that the prosecution evidence at the trial was solid and proved the charges against the Appellant beyond any reasonable doubt, and that the defence was properly dismissed. In the result, the court found no merit in the appeal and it is hereby dismissed. DELIVERED AND SIGNED AT KAJIADO ON THIS 14TH DAY OF MAY 2026 C.MEOLI JUDGE In the presence of: For the State: Ms. Halima Appellant: present C/A: Lepatei https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6562/eng@2026-05-14 7

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