Ezekiel Muteithia v Republic

8. He told her that their neighbour Kalaura was very ill and he wanted to send her to the shops to buy him medicine. The Appellant then led her into the bush stating that Kalaura was lying there. 9. In the bush there was no Kalaura, the Appellant who was armed with a machete hit the victim with it’s flat side on the head. She tried to scream and he stifled her by covering her mouth with his palm. 10. He removed her skirt and underpant. He then undressed and had sex with her. A short while, she saw a torch flashlight and the Appellant took her deeper into the bush. 11. A short while, the victim’s father noted that she was missing in the homestead. He called PW-2 to inquire whether she knew of where about she was. PW-2 rushed home to find out where she was. They looked for her within the homestead but in vain. It’s then they realized that the Appellant who was living within the homestead was also missing. 12. They called the area Chief (PW-5) and neighbours to search for the two. They searched in the neighborhood upto 1.30 Am but in vain. They decided to stop the search and commence the following day. 13. The Appellant when he was through with the victim, released her. She ran to the house of her Uncle, SK. She informed him of the incident. At about 2.00 Am PW-2 was informed by a man called Jeremiah that the victim was at her Uncle’s house. She rushed there and met the victim. The victim had a swollen face and she narrated what the Appellant had done to her. Her clothes were soiled and had difficulties walking. 14. The victim was taken to Karithiria police post where the incident was reported. PW-4 issued her with a p3 form. She was then taken to Nairobi Women’s Hospital at Makutano, Meru on 9/1/2021 for examination and treatment. 15. On examination, her upper lip was swollen as well as the forehead. Her hair was also plucked. She had bruises on knees. Genitalia examination showed her labia was swollen and hymen freshly perforated. She had also a sticky white discharge. The doctor opined that the physical examination was consistent with vaginal penetration. The P-3 form was thus filled and was produced as an exhibit. 16. On 9/1/2021 at about 9.00 am the Appellant was caught by villagers at Mzee Gangara’s area. They arrested him and called PW-5. They also recovered a panga from him. The Chief re-arrested him and took him to the Police post. After the investigations were completed he was charged with the offences carried in the charge sheet. 17. The Appellant’s defence is that he had been employed to graze cows for about one year. On 7/1/2021 he requested his employer for money so as to visit his parents. He was told to wait. On 8/1/2021 he woke up and went to graze the cows. The employer asked him to stop the work. 18. He stopped and went to take tea at a nearby kiosk. He met his employer’s brother and a brother to his wife. They hit him and called him a thief. They arrested him and took him to the Police Post. It was alleged he had defiled his employer’s daughter, aged 13 years old. He was beaten, and noted they were out to kill him. He admitted commission of the offence. He was then taken to Court and charged. 19. The Trial Court evaluated the evidence and found the Appellant guilty of the offence in the main count. He was consequently convicted of it and sentenced to serve 25 years imprisonment. 20. The Appellant dissatisfied with the said conviction and sentence filed an Appeal before this Court on the grounds; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7724/eng@2026-06-03 2

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1. That, the Learned Magistrate erred in law and fact by relying on inconsistent, contradictory, and unreliable identification evidence, thereby rendering the conviction unsafe. 2. That, the Learned Magistrate erred in law and fact by failing to consider and reconcile material contradictions in the prosecution’s evidence, particularly regarding time, sequence of events, and medical findings. 3. That, the Learned Magistrate erred in law and fact by admitting irrelevant, prejudicial, and improperly handled evidence, contrary to established evidentiary principles. 4. That, the Learned Magistrate erred in law and fact by violating the Appellant’s fair-trial rights under Article 50, including restricting cross-examination and failing to accord adequate time and facilities to prepare a defence. 5. That, the Learned Magistrate erred in law and fact by relying on inconclusive, uncorroborated, and scientifically insufficient medical evidence to sustain a conviction. 6. That, the Learned Magistrate erred in law and fact by failing to inform the Appellant of his constitutional right to legal representation under Article 50(2)(g), thereby rendering the entire proceedings a nullity. 7. That, the Learned Magistrate erred in law and fact by imposing a harsh, excessive, and disproportionate sentence contrary to Section 8(3) of the Sexual Offences Act, the Sentencing Policy Guidelines, and Article 50(2)(q) of the Constitution. 21. The Respondent opposed the Appeal of which was canvassed by way of Written Submissions. 22. This being the first Appellate Court, I am expected to subject the evidence as a whole to a fresh and exhaustive examination and to draw my own independent conclusion – Okeno –vs- Republic (1972) EA 32. 23. The offence of defilement is created by Section 8(1) of the Sexual Offences Act No. 3 of 2006, which provides that:“ A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” 24. The three essential ingredients for the offence of which the prosecution must prove beyond reasonable doubt are:1. Proof of the age of the complainant, who must be a child, below 18 years old. Age is a critical ingredient as it determines both the offence and the applicable sentence. 25. The Court of Appeal in Edwin Nyambogo Onsongo –vs- Republic (2016) eKLR held that age may be proved through a birth certificate, baptism card, age assessment report, parents’ evidence, or any other credible evidence. 26. In this case the victim’s Birth Certificate copy was produced as an exhibit. It shows she was born on 26/2/2008. The offence was committed allegedly on 8/1/2021. By simple calculation, as of the time of commission of the alleged offence, the victim was aged 12 years old. She would have hit 13 years old on 26/2/2021. Though the charge sheet states she was 13 years old, she was actually 12 years old. This noted error in the charge sheet in curable under section 382 of the CPC as it did not occasion a failure of justice or prejudice the accused person in the conduct of his defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7724/eng@2026-06-03 3

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27. Having weighed the evidence in relation to the age of the victim, I do find that she was a child aged 12 years. 28. Proof of penetration. Here the prosecution must proof penetration as defined under section 2 of the Sexual Offences Act. This is partial or complete insertion of the genital organs of a person into the genital organs of another person. The question is whether the victim herein was penetrated. 29. Her evidence reveals that Ezekiel removed her skirt and underpants. He then removed his own clothes before having sex with her in the bush. 30. The evidence of her mother (PW-2) shows that at about 2.00a.m when she saw the victim, her clothes were soiled and she had difficulties walking. She informed her mother that Mutethia had raped her 5 times at different spots in the bush. 31. PW-3 who produced her P.3 form of which was filled at Nairobi Women’s Hospital at Makutano, stated that her lip was swollen, as well as her forehead. Her hair was plucked. She had bruises on her knees. Genitalia examination showed that her labia was swollen and her hymen freshly perforated. She also had a white sticky discharge. The doctor concluded that the findings were consistent with vaginal penetration. 32. Upon re-evaluation of the record, I find that the prosecution’s evidence on penetration was not challenged in any material respect. The complainant’s testimony, as corroborated by the medical evidence, remained uncontroverted, and there was therefore sufficient evidence upon which the trial Court properly found that the ingredient of penetration had been proved beyond reasonable doubt. 33. Positive identification of the perpetrator. Here the prosecution must prove that it was the Appellant who committed the act of penetration with the minor. Identification or recognition evidence must be free from the possibility of error. 34. The evidence of PW-2 shows that the Appellant was their employee for a period of one year and was living with them within the home compound. He was therefore a person well known to the victim. The victim stated she saw him well as there was solar powered electric bulb. They were together from about 7.30 p.m upto about 2.00 a.m of which gave her ample opportunity to recognize him. It should also be noted that when she went missing he was also not within the home compound, which points to the fact that they were together. This Court finds that this was a case of recognition rather than identification of a stranger. Recognition is generally more reliable because it is based on prior acquaintance. The circumstances prevailing at the time of the incident favoured positive recognition. Consequently, the evidence of recognition is reliable, safe and capable of sustaining a conviction. 35. The Appellant herein was therefore rightly convicted of the offence of defilement. 36. Concerning the sentence, Section 8(3) of the sexual offences Act states that:“ 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.” 37. The law gives the minimum sentence for the offence but that is not the only sentence a Court may impose. Where there are aggravating factors, the Court is entitled to give a more severe sentence. 38. In this case the victim was aged 12 years and was therefore vulnerable and incapable of protecting herself from the offence. The Appellant in committing the offence breached the trust bestowed upon him by the parents of the victim as their employee who was staying with them in the same homestead. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7724/eng@2026-06-03 4

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The offence was committed in a violent manner where the victim was struck on the head with the flat side of a panga, causing her facial injuries. She had also a swelling on her lip and bruises on her knees. 39. Further, the said offence caused the victim significant emotional trauma, psychological or mental suffering. 40. In the circumstances the trial Court was in order when it settled for 25 years imprisonment. I find no ground warranting interference with the same. 41. The bottom line is that the appeal lacks merit and is hereby dismissed. DATED AND DELIVERED AT MERU THIS 3RD DAY OF JUNE, 2026. S.M. GITHINJI – JUDGE 3/6/2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7724/eng@2026-06-03 5

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