Mahia Mungai v Republic

Appellant’s Submissions 6. The Appellant contends that the prosecution failed to produce cogent medical evidence to prove penetration. He points out that while the victim (PW1) testified that she was taken to the doctor immediately after the incident, the clinical officer (PW4) told the court that the wounds were old and the hymen had been broken long before the examination. It is submitted that this timeline is inconsistent and casts doubt on whether the offence occurred on the dates, indicated on the charge sheet. 7. The Appellant further argues that there was no physical contact on the alleged dates as was affirmed by the testimony of PW2 who testified that on 30th July the Appellant never went with the child. He further states that no biological material was extracted from him to confirm if he was the offender. 8. On the medical evidence presented on behalf of the complainant, the Appellant submits that the age of the injuries found on her were not ascertained; and there is contradiction on the date of examination. Respondent’s Submissions 9. The Respondent opposes the appeal, and submits that all necessary ingredients of defilement were proved to the requisite standard. On penetration, the respondent submits that the victim’s testimony (PW1), corroborated by her mother (PW2) and the medical report showing an old hymenal break, fits the charge of defilement, occurring on diverse dates. 10. The Respondent also argues that the 30-year sentence is bad in law as Section 8(2) of the Sexual Offences Act mandates life imprisonment for defiling a child aged eleven years or less. He urges this court to enhance the sentence to life imprisonment, in accordance with the mandatory statutory requirement. Summary of the Evidence 11. PW1 was the complainant. She testified that she knew the Accused and she pointed at him in court. she knew him as “Guuka” and who worked as a watchman at their plot. She testified that Guuka used to take her to his house under the pretext of showing her rabbits. She gave a detailed account of how Guuka would put his “susu “ in her and she demonstrated the site by pointing at her groin. That he would remove her clothes, placed her on a sack on his bed, and put his “susu” in her, which caused her pain and bleeding. She stated he also beat her with a “mushaguthi” (cow tail) when she refused to undress and later gave her sweets to keep her silent. 12. PW2 was, the victim’s mother. She told the court that on 30th July 2020, she was in the company of PW1 and the Appellant. The Appellant invited her to his house but change the invitation and told her to go take a bath and would show her the Rabbits the next day. Sensing her daughter’s uneasiness, she questioned her and the child disclosed that the Appellant had been defiling her in a house filled with hardware materials. She reported the matter to Kandara Police Station and took the victim to the hospital. 13. PW3 was Sgt. James Nduba, the investigating officer. He testified that he received the report on 31st July 2020. He visited the alleged scene and confirmed it contained hardware materials and rabbits. He produced the victim’s birth certificate (Exhibit 1) confirming she was born on 3rd December 2015, making her 4 years and 7 months old at the time of the offence. 14. PW4 was the, clinical officer He examined the complainant on 3rd August 2020. He told the court that the victim’s hymen had been broken “long before”, and that there were no fresh lacerations or discharge. He concluded that the victim had been defiled severally by a known person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9179/eng@2026-06-25 2

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15. The Appellant was put on his defence at the close of the prosecution’s case and he opted for unsworn testimony. He denied the charges. He stated he was a watchman in Gacharage and stated that he took himself to the police station after learning of the allegations against him. Analysis and Determination 16. This being a first appeal, this Court is under a duty to review, re-evaluate, and analyse afresh the evidence that was tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.( see :Okeno v Republic [1972] EA 32). 17. The court has identified the following issues for determination: a). Whether the prosecution proved the element of penetration beyond a reasonable doubt. b). Whether the sentence was lawful. Whether penetration was proved beyond reasonable doubt 16. The Appellant was convicted of the offence of defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act. To sustain a conviction for defilement, the prosecution must prove, beyond reasonable doubt, three essential ingredients namely: the age of the complainant, proof of penetration, and positive identification of the perpetrator. Th e above elements were reiterated by the Court of Appeal in George v Republic [2026] KEHC 6486 (KLR). The Appellant’s Appeal is against the finding on penetration only. 18. Penetration is defined under Section 2 of Act as “the partial or complete insertion of the genital organs of one person into the genital organs of another person.” 19. The complainant (PW1), testified that the Appellant put his “susu” (an euphemism for pennis) to her groin, which part of her body she identified by pointing to it. the Appellant removed her clothes and inserted his susu into hers. She further testified that the act caused her pain and bleeding. On being recalled for cross- examination, she stated that the Appellant did “ tabia mbaya ( bad things ) to me here “ and the court noted: “ shows her private area”. “Tabia mbaya “ is another euphemism which the courts have long accepted to be a term used by young children to refer to sexual intercourse. 20. The law is settled that the evidence of a child victim of a sexual offence may, if believed by the court, be sufficient to found a conviction even in the absence of corroboration. Section 124 of the Evidence Act expressly permits a court to convict on the sole evidence of the victim in a sexual offence provided the court records reasons for believing the victim. 24. In the present case the court carried out voir dire examination and found the child to possess sufficient intelligence to testify. She gave a consistent account even after being recalled at a later date to testify as stated in paragraph 19 of this judgment. Her evidence remained unshaken during cross-examination. Further the complainant was too young to be able to sustain any evidence that could have emanated from being coached. Indeed, the trial court observed, and I have no basis upon which to fault her observation, that the child was particularly clearer in her testimony during cross- examination. I find that the child’s testimony alone sufficed for purposes of conviction. 18. However, there were also circumstantial evidence which corroborated the child’s testimony. The child’s mother (PW2) testified that she was present on 30th July 2020 when, as usual, the Appellant invited the child, but did not go with the child telling her that he will take her the following day. It was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9179/eng@2026-06-25 3

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upon noticing the child’s discomfort by that exchange, that she questioned her and ended up with the child explaining what had been happening. 19. The clinical officer too corroborated the child’s testimony. He testified that the child’s hymen had been broken, but the scar was old. It corroborated the child’s testimony that it was not a onetime incident. It had been happening previously. For instance, on being recalled for cross- examination, she stated that the other day he did “tabia mbaya” to me at the plots. Indeed, the entire cross- examination appearing on page 12 of the record of Appeal reveal that the defilement was not one day’s incident. Further PW2, the mother testified that prior to 30th July 2020, the Appellant used to call the child. He would tell the child to go and see Rabbits. The investigation officer (PW4) visited the scene described by the child and confirmed the existence of the room and rabbits exactly as narrated by the complainant and her mother. 20. The Appellant has raised some issues in relation to the medical evidence. Firstly, he argues that the wounds observed by the clinical officer were not consistent with the date of the alleged defilement. Secondly, he argues that while PW2 testified that the Appellant did not go with the child, he has been charged to have committed the offence on that day. 21. The correct position however is that on 15/9/2021, the prosecutor presented an Amended charge sheet. It was read to the appellant and he responded to it, denying both the main and the alternate charge. The Amended charge sheet covered the period between 1/07/2020 and 30/07/2020. It is also true that PW2 testified that the Appellant did not go with the child on 30th July 2020. Thus, the charges as testified by the child and her mother was consistent with the evidence of the clinical officer to the effect the child had been defiled, though not recently. It is incorrect therefore to state that the Appellant was being charged with an offence that occurred on 30th July 2020. The 30th July was when the offence came to light. 22. Further it is trite law that medical evidence is not the only basis of establishing defilement as the victim’s evidence can suffice. In this case while the court has found that for reasons stated before, the child’s testimony sufficiently proved penetration, there was substantial corroborative evidence. In this regard I wish to rely on the court of Appeal decision in the case of Fappyton Mutuku Ngui v Republic [2014] eKLR where the court held that: “medical evidence is merely corroborative and that penetration may be proved by the testimony of the victim even where medical findings are inconclusive.” 23. The Appellant has suggested that he should have been examined for purposes of establishing whether he was indeed the perpetrator. The complainant knew the Appellant before the incident. She referred to him as “Guuka” and explained that he worked as a watchman at the plot where she resided. PW2 too testified that the Appellant worked at a nearby plot, and she was present when the Appellant gave an invitation to the child on 30th July.This was therefore a case of recognition rather than identification of a stranger. In the case of Anjononi & Others v Republic (1980] ) KLR 59 the Court held that recognition is more reliable than identification of a stranger, because it is based on previous knowledge of the accused 24. The Court is therefore satisfied that the evidence of PW1, coupled with the medical findings and surrounding circumstances, established penetration beyond reasonable doubt. 25. The Appellant’s unsworn denial did not displace the cogent prosecution evidence nor did it raise any reasonable doubt. 26. On the totality of the evidence, am satisfied that the prosecution’s case met the threshold of proof, and the conviction was therefore safe. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9179/eng@2026-06-25 4

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Whether the sentence was lawful 28. The complainant was aged four years and seven months. Section 8(2) of the Sexual Offences Act provides that a person who commits an act of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 29. The trial court imposed a sentence of thirty (30) years imprisonment. That sentence was below the sentence prescribed under the Act. 30. The Respondent has urged this Court to enhance the sentence. However, there is no evidence that the Appellant was given prior notice that enhancement of sentence would be sought. If the court was to enhance with due notification, it would constitute the Appellant’s rights to fair trial. 31. Disposition. a). The appeal against conviction is hereby dismissed. b). The sentence of thirty (30) years imprisonment is affirmed DATED, SIGNED AND DELIVERED AT ISIOLO, VIA MICROSOFT TEAMS, THIS 25TH DAY OF JUNE , 2026. S. CHIRCHIR JUDGE. In the presence of : Roba Katelo- court Assistant Mr. Gitiha Mburu for the Appellant The Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9179/eng@2026-06-25 5

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