Paul Kibue Rutu v Republic

4. At the conclusion of the trial, he was acquitted of the main charge under section 215 of the Criminal Procedure Code and convicted on the alternative charge and sentenced to serve 10 years’ imprisonment. 5. Aggrieved with the judgement, he appealed to this court through his home made Petition of appeal dated 16th April 2024 on grounds reproduced verbatim that:i. That the learned trial magistrate erred in law and fact by relying on a defective charge sheet. ii. That the learned trial magistrate still erred in both matters of laws and facts by failing to note that the ingredients of attempted defilement were not proved beyond the required standards. iii. That the learned trial magistrate erred in both points of law and fact by failing to consider that the medical examination did not link the appellant with the alleged offense. iv. That the learned trial judge erred in both laws and facts by disregarding the appellant’s defense, without giving cogent reasons. v. That the learned trial magistrate erred in both points of law and facts by failing to consider that the case was framed up as the appellant was an employee of the complainant’s father. vi. That further grounds to be adduced during the hearing of his appeal. 6. The Appeal was canvassed through written submissions as directed by the court. 7. The Appellant’s undated submissions were received in court on 24th September 2025. The gist of the Appellant’s submissions was that the Prosecution case was not proved as there was no cogent evidence. That the case was a frame up. The Appellant further stated that he had been acquitted yet he remained in prison. 8. The Respondent on the other hand filed submissions dated 17th July 2025, in which they identified issues for determination as follows:- 9. i. Whether or not the Prosecution proved all the requisite elements of the offence and to the required standard. ii. Whether or not the Prosecution’s case was corroborated iii. Whether or not the Appellant’s mitigation before sentencing was considered. I am mindful of my duty as a first appellate court to carefully examine and evaluate the evidence which was presented before the trial court and come up with my own independent decision. In Kiilu & Another-v- Republic (2005) 1 KLR 174 the Court of Appeal restated his duty 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 and to the appellate court’s own decision on the evidence. The first appellate court must itself weight conflicting evidence and draw its own conclusions. It is not the function of a 1st appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion. It must itself make its own finding. 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 advantage of hearing and seeing the witnesses.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9385/eng@2026-06-30 2

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10. The evidence before the trial court follows. The victim of the offence was one A.M (PW1)a boy aged 6 years. His testimony was that the Appellant who was his parent’s casual labourer called him to his quarters, and on arrival undressed him and lay on him (PW1) on the bed and did bad manners on his (PW1’s) buttocks. That the Appellant also touched PW’s anus with his fingers. That his mother (PW2) found him inside the Appellant’s house and raised an alarm. 11. Gloreen Kendi (PW2) testified that she found her son missing in the evening and upon search she found him in the workman’s room near the gate. The son was in the process of putting on his trousers while the Appellant lay naked on the bed. That she saw some liquid on PW1’s inner thighs. 12. The victim’s father Samwel Muthini Karangi (PW3) told the court that he responded to his wife’s scream and found PW1 wearing his trousers while the Appellant lay naked on the bed. That there was some wetness on PW1’s buttocks which looked like sperms. He immediately called the police who came and arrested he Appellant as PW3 escorted his son to hospital. 13. Kenneth Mutwiri (PW4) was the clinical officer who examined PW1 at Marimanti level 4 hospital. He found wetness and a whitish discharge on his anal region. The sphincter muscles were normal. He produced the P3 Form [Exhibit -1]. 14. Christopher Mutugi (PW5) was the family driver who was at the compound at the material time. His testimony was that he responded to the scream by PW2 and on rushing to the scene found both the Appellant and the victim naked. He identified the Appellant as one of PW3’s casual workers who looked after livestock. 15. No. 258666 P.C Emmanuiel Kibet of Mukothima Police Post (PW6) was the investigating officer. He wrapped up the Prosecution evidence and produced the PW1’s Birth Certificate S/No. 0075705 as Exhibit- 2. The Appellant’s defence 16. The Appellant testified as DW1. He stated that he was hired to take care of pigs and general cleaning by the complainant’s parents from March 2022. His defence was that he had work related issues with his employer and the case was a fabrication because they wanted to sack him having previously sacked other workers before him. He denied having attempted to defile PW1 and stated that on the material date he had retired when he was woken up around 8.30 p.m. with kicks and slaps and arrested. That he was not informed of the reason for his arrest. 17. In cross-examination, he stated that PW1 did not go to his room on that day, though he used to go there before with the permission of PW2 who had requested him to assist the mother (PW1) with school homework. 18. From the grounds of appeal, the record as summarized above and the respective submissions of the parties, the issues for my determination which are intrinsically linked to the ingredients of the offence are:i. Whether the charge was defective. ii. Whether the age of the victim was proved. iii. Whether the attempted defilement was proven. iv. Whether the alternative charge of indecent act was proven. v. Whether the Appellant was positively identified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9385/eng@2026-06-30 3

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vi. Whether the Appellant’s defence was credible. vii. Whether the sentence was lawful and appropriate. i. Whether the charge was defective The Appellant raised the ground that the charge was defective. I have looked at the main and alternative charges and found no material defect. They provided the Appellant with the particulars of the offence and gave him adequate notice of the charges against him sufficient for him to prepare his defence. ii. Age of the victim 19. Proof of the age of the victim is critical in a charge of defilement. This is because the law has provided graduated sentences depending on the age of the victim. The importance of proving the age of the victim was stated by the court in Hadson Ali Mwachongo vs. Republic [2016] eKLR thus:“ The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello vs. Republic Criminal Appeal No.203 of 2009 (Kisumu). This Court stated as follows:‘…..In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim and consequently the age of the victim is necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under Section 8(1).” 20. There was no contest on the age of the victim code – named A.M. His age was proved by production of his Birth Certificate Serial No.0075705 [Exhibit 2] by the Investigating Officer (PW6). 21. I have looked at the Exhibit 2. It shows the date of birth as 5th April 2016. The offence took place on 24th December 2022. By deduction A.M was aged 6 years 7 months which in law is 6 years as he had not attained his 7th birthday. I am satisfied that the age of the victim was proven beyond reasonable doubt. iii. Whether the charge of attempted defflement was proven 22. The Appellant was charged under section 9(1) of the Sexual Offences Act which provides:“ 9(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.” 23. Section 388 of the Penal Code defines “attempt” as follows:“ (1) When a person, intending to commit an offence, begins to put his intentions into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9385/eng@2026-06-30 4

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(3) 24. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.” In the case of Moses Kabue Karuoya vs. Republic [2016] eKLR the court held inter-alia:“ I reiterate that the key ingredients of the offence before me can be summarized as follows namely; (a) intend to commit the offence. The second requirement (b) is the accused must begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve. Lastly the accused must (c) do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence.” 25. Evidence of the attempted defilement was given by the victim (PW1). PW1testified that on the material evening, the Appellant called him to his house where the removed (PW1’s) trouser and under-wear, completely undressed himself and “did bad manners” to PW1 on his back. The trial court understood, as does this court, that “bad manners” meant a sexual act. 26. The victim’s mother (PW2) testified that she found her son (PW1) putting on his trouser while the Appellant was completely naked on his bed. 27. With respect to medical evidence [Exhibit-1] presented by PW4 who stated that the examination of PW1 revealed wetness in the anal area but that his sphincter muscles were normal. 28. The trial court upon analysing the evidence above came to the conclusion that the Prosecution had not proved intention to execute the offence. The court further made a finding that there was no cogent evidence to proving that the Appellant attempted to defile the victim. 29. The trial court consequently acquitted the Appellant on the main charge of attempted defilement. The lower court however proceeded to convict on the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 30. I have re-evaluated the Prosecution evidence. The evidence of the minor was that the Appellant undressed him and did “tabia mbaya” to him on his back and poured a liquid on his buttocks. He said that the Appellant touched his (PW1’s) anus with his finger. 31. PW2 found the Appellant naked and the minor putting on his trousers. Upon raising an alarm, the Appellant was arrested while still naked in the room. PW1, PW2, PW3 and PW5 all said that the Appellant was drunk. 32. The medical evidence presented by the clinical officer did not show any injury and the sphincter muscles were intact. Further, the clinical officer (PW4) stated that he did not obtain the laboratory results of the swab or wetness on the victim’s buttocks. The clinical officer further stated that they did not get laboratory results on the swab taken thus causing doubt as to whether the wetness purported to have been seen by PW2 and PW3 was spermatozoa. In this regard, the medical evidence was not helpful to the Prosecution case. 33. I have considered the evidence that both the victim and the Appellant were naked at the time that PW2 entered the room. Whereas this fact could be considered an overt act proving attempt, I hesitate to arrive at such a finding for reason that there was evidence that the Appellant was found lying on his bed drunk. Other than undressing, there was no other overt act towards defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9385/eng@2026-06-30 5

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34. I have looked at the evidence of the Investigating Officer (PW6). PW6 told the court that the area chief found him at the Mukothima Police Post and reported the incident. That upon arriving at the scene, he found the Appellant surrounded by members of the public. His observation is that the Appellant was naked and drunk. PW6 testified that upon interrogation the victim told him that he slept in the accused’s bed and the accused removed his (PW1’s) trouser and underwear and penetrated his anus. That PW1 screamt and his mother (PW2) responded. 35. Save for the part that the Appellant was drunk and naked, the Investigating Officer’s evidence apart from being hearsay is not factually correct because none of the prosecution witnesses testified to PW1 being penetrated and the medical evidence` clearly excluded penetration. The Investigating Officer seemed to have flavoured the testimonies of the witnesses. 36. I therefore agree with the trial court that the overt actions constituting attempt were not proven beyond reasonable doubt. (iv) Whether the alternative charge was proven 37. The evidence on the other hand clearly proved the equally serious alternative charge of committing an indecent act with a child. The trial court before whom the victim testified stated that it had believed the minor witness. The court stated that his testimony was credible. To rehash, the PW1 told the court that the Appellant undressed him and touched his buttocks and anus with his finger. To the mind of this court those acts constituted and indecent act. I therefore agree with the trial court that the indecent act was proved. (v)Whether the Appellant was positively identiffed and linked to the ofience. 38. There was no contestation on the identity of the Appellant. According to Prosecution witnesses the victim (PW1) his mother (PW2) his father (PW3) and was even employed by the victim’s parents (PW2) and PW3 as a casual labourer. He had worked for the family for 8 months and the scene of the offence was his quarters near the gate of the homestead. Though the offence occurred at night around 7-8 pm, this was a person well-known to the family and who was arrested at the scene. It is my finding therefore that the Appellant was positively identified as the person who committed an indecent act with the minor. (vi)The Appellant’s defence. 39. The Appellant stated in his defence that the case was a fabrication. On appeal he submitted that his defence was not considered by the trial court. 40. The record however shows that the trial court considered the Appellant’s defence and dismissed it as a mere denial stating that no evidence of a grudge between the Accused and the complainant’s family was established. As stated earlier, the Appellant told the court that he was employed by the victim’s parents. His duties were to take care of the pigs and do general cleaning. He had worked for them for 8 months and his quarters was near the gate. All these witnesses named him and identified him as the person who was with the victim at the material time in his quarters. 41. I have looked at Appellant’s defence. It revolved around an alleged scheme by his employers to terminate his (Appellant’s) employment. The Appellant also stated that it was usual for the minor to go to his house as the mother (PW2) had requested him to assist PW1 with his homework. He stated that the minor was not in his house on the material date. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9385/eng@2026-06-30 6

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42. The Appellant’s defence confirmed that he was well known to the minor victim. He admitted that they were close as sometimes he assisted him with his homework. He also admitted that the minor used to go to his house by the gate. 43. The Appellant also stated that he was drunk on the material date further giving credence to the Prosecution evidence placing him at the scene while drunk. 44. It is my finding that the defence did not cast doubt on the Prosecution case which I have already found proven. In fact it contained material admissions in respect to the positive identification of the Appellant as the perpetrator. 45. It is my further finding that the Appellant’s claim that the evidence was fabricated in order to precipitate his sacking was not credible. There was nothing to stop PW2 and PW3 from sacking the Appellant if they were unhappy with his work. They did not need to expose their minor son to an allegation and trial of such a horrendous offence. 46. In the end, the appeal against conviction lacks merit and is dismissed. I uphold the conviction. For clarity the Appellant was convicted on the alternative charge for the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. (vii)Whether the sentence was harsh and excessive. 47. Section 11(1) of the Sexual Offences Act provides:“ 11(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” 48. The Appellant was sentenced to a mandatory minimum sentence provided by law. The Supreme Court in the case of Julius Kitsao Manyeso v. Republic Petition No. E013 of 2024 [2025] KESC 16 KLR] held that sentences under the Sexual Offences Act remained mandatory until and unless Parliament amended the law. The Supreme Court provided clarity as follows:(62) In the Muruatetu Directions, this court pronounced itself on the application of the ratio in the Muratetu case to other statues prescribing mandatory sentences as follows:“ 10. It has been argued in justifying this state affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgement as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision’s expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it.” …..We therefore reiterate that, this court’s decision in Muruatetu did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.” 14. It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.” [underline mine.] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9385/eng@2026-06-30 7

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49. It was the duty of the trial court therefore to impose the prescribed sentence unless and until Parliament amended the same. Consequently, the Appeal against sentence is therefore dismissed. 50. In the end, the Appeal lacks merit and is dismissed. I uphold both the conviction and sentence. The Appellant has 14 days right of appeal to the Court of Appeal. JUDGMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 30TH DAY OF JUNE, 2026. ......................... R. LAGAT-KORIR JUDGE Judgement delivered in the presence of the Appellant acting in person in Marimanti Prison. Ms. Rukunga for the Respondent, and Muriuki (Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9385/eng@2026-06-30 8

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