Mutua Muia v Republic

she had spent the night at the accused's house. PW1 produced the complainant's birth certificate and testified that she also took her daughter to hospital for medical examination and treatment, producing the relevant medical documents. 4. In cross-examination, PW1 confirmed that she had reported the matter to the police and that one Patrick Muli informed her that the complainant had returned home. She admitted that she did not personally see the accused pull the complainant into his house and had never previously seen the accused with the complainant. She stated that her knowledge of the accused's involvement came from the complainant's account and reiterated that the complainant was medically examined. 5. PW2, Veronica Mukui Mutua (Complainant), testified that she was 15 years old at the time of the offence and a Grade Eight pupil at Maviani Junior Secondary School. She testified that on the material day on 26th May 2024, at about 2.00p.m., she was walking home from church when she met the accused for the first time. That the accused greeted her, held her, and led her to his house where he locked the door. She testified that the accused carried her to a bed, removed her clothes, covered her mouth when she attempted to scream, and had sexual intercourse with her. She remained in the accused's house throughout the night and was released the following day. She thereafter returned home, informed her mother of the incident, reported the matter to the police, and later led the police to the accused's residence where he was arrested. She was subsequently taken to hospital for examination. 6. During cross-examination, she maintained that the accused forcefully took her into his house and covered her mouth, preventing her from screaming. She stated that she was frightened and that the accused forcefully had sexual intercourse with her, causing injuries to her private parts. She denied any suggestion that she was older than the age reflected in her birth certificate. 7. Upon re-examination, she stated that she repeatedly pleaded with the accused to release her and allow her to return home and added that the accused asked her whether he would be jailed for what he had done. 8. PW3, No. 89530 PC George Katana, testified that he was attached to Kako Police Post and was the investigating officer in the matter. He stated that on 27th May 2024, the complainant's mother reported that her daughter had gone missing. Later, the complainant returned and alleged that she had been defiled. He testified that the complainant was taken to hospital for examination and thereafter led the police officers to the accused's residence where she positively identified him. The accused was then arrested and charged. 9. In cross-examination, PW3 conceded that he did not witness the alleged offence and did not inspect the accused's house or visit the scene. However, he maintained that the complainant positively identified the accused as the perpetrator and that the medical evidence corroborated her allegations. 10. Upon re-examination, he reiterated that the complainant had positively identified the accused. 11. PW4, Elizabeth Mwende Kivuti, a Clinical Officer and Officer-in-Charge of Kako Health Centre, testified that she examined the complainant on 27th May 2024 following allegations of defilement. She produced the P3 Form and the Post Rape Care (PRC)Form in evidence. She stated that upon examination of the complainant, she observed lacerations on the labia majora and several lacerations inside the vagina. She also noted that the vaginal area was reddish and had a whitish, foul-smelling discharge. Based on her findings, she concluded that there had been blunt penetrating trauma. 12. During cross-examination, PW4 stated that the complainant was aged 15 years and that she obtained the history from both the complainant and her mother. She explained that the injuries were fresh and likely sustained a few hours before the examination. She observed that the hymen had previously been https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10869/eng@2026-07-17 2

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broken and stated that although she conducted pregnancy and HIV tests, she did not perform a vaginal swab test. She further clarified that she could not identify the person responsible for the injuries and could only confirm that penetration had occurred. 13. Upon re-examination, she reaffirmed that the lacerations and whitish discharge were consistent with recent sexual intercourse and indicated an infection. 14. On close of the prosecution case, the Accused was found with a case to answer. Upon being placed on his defence, the appellant gave sworn evidence in which he denied committing the offence. He told the trial Court that he was a second-year student, pursuing Bachelor of Information Technology at Murang'a University. He stated that he had been sent by his employer to Watuka, Mbooni West, to supervise a construction project and was staying there with another worker known as Muthoka. According to him, on 26th May 2024, he remained at the homestead and did not attend church. He testified that Muthoka came to the homestead at noon and stayed with him until about 11.00 p.m., watching a movie. The following day, while he was working, two men approached pretending to buy hay. Shortly thereafter, a motorcyclist arrived with a girl who pointed at him, leading to his arrest. He was taken to Kako Police Station and later to Mbumbuni Police Station. He further alleged that when his father visited him in custody, he met the complainant's parents who sought money to withdraw the case. He also claimed that disagreements between the complainant's family and his employer resulted in his implication. He denied committing the offence and maintained that he was innocent. 15. During cross-examination, the accused admitted that he did not pursue his allegation that the complainant had previously made a similar complaint against another person. He acknowledged that the complainant was a child according to her birth certificate and admitted that she identified him during his arrest. He also acknowledged the existence of the medical evidence produced by the prosecution. 16. Upon re-examination, he explained that he did not investigate the alleged earlier complaint because he had been warned not to return to the area after his arrest. 17. In the judgement delivered on 5th August, 2025, the learned trial magistrate found the main charge of defilement was proved beyond reasonable doubt and convicted the Appellant accordingly. He was then sentenced to serve 15 years in prison. 18. Dissatisfied with that decision, the appellant lodged this Appeal through a Petition of Appeal dated 25th August, 2025, challenging both his conviction and sentence based on the following amended grounds of appeal;- 19. 1. The trial magistrate erred in law and in fact by failing to find that the prosecution failed to prove the key ingredients of defilement beyond reasonable threshold. 2. That the trial magistrate erred in law and in fact by failing to find that the prosecution was marred with a lot of contradiction and inconsistencies that did not warrant a conviction. 3. The learned magistrate erred in law and in fact by not finding the prosecution witnesses were of questionable integrity that when relied upon caused erroneous conviction and sentence which was a prejudice to the Appellant herein. In his submissions, the Appellant challenged both his conviction and sentence on the grounds that the prosecution failed to prove the offence of defilement beyond reasonable doubt and that the trial court failed to properly evaluate the evidence on record. He submitted that the prosecution's case was riddled with contradictions and inconsistencies, which rendered the evidence unreliable and incapable of sustaining a conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10869/eng@2026-07-17 3

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20. On the issue of age, the appellant argued that there was uncertainty regarding the complainant's exact age. He pointed out that the complainant testified that she was sixteen years old, whereas her mother stated that she was fifteen years old. According to him, this inconsistency was material because the age of the complainant determines the applicable sentence under the Sexual Offences Act. He submitted that the prosecution ought to have conducted an age assessment to remove any doubt and that the failure to do so rendered proof of age insufficient. In support of this argument, he relied on Francis Omuroni v Republic [2000] eKLR, where the Court held that age is a critical ingredient of the offence of defilement and must be proved beyond reasonable doubt, and on Kaingu Kasomo v Republic [2014] eKLR, where the Court emphasized the need for credible documentary evidence to establish age. He also cited Arthur Mshila Manga v Republic [2016] eKLR for the proposition that proof of age is an essential ingredient in sexual offences. 21. The appellant further submitted that the prosecution failed to prove the element of penetration. He argued that the medical evidence was inconclusive because the clinical officer found that the complainant's hymen had previously been broken and did not indicate whether the breakage was recent. He contended that a broken hymen, without more, cannot be conclusively linked to sexual intercourse with the accused. In support of this argument, he relied on John Mutua Munyoki v Republic [2017] eKLR, and argued that the Court of Appeal held that the absence of a hymen, without additional evidence, did not conclusively prove defilement. 22. The appellant also argued that the prosecution witnesses gave contradictory and inconsistent evidence, thereby rendering their testimony unreliable. He submitted that the discrepancies in the prosecution's case created reasonable doubt which ought to have been resolved in his favour. He relied on Ndungu Kimanyi v Republic [1979] KLR 283, where the Court held that a witness upon whose evidence it is proposed to rely should not create an impression of being untrustworthy or unreliable. 23. Further, the appellant contended that the trial court failed to properly consider his defence, which, in his view, was cogent and plausible. He maintained that he had been falsely implicated and that the evidence raised a reasonable possibility of innocence. In support of this argument, he relied on Duncan Mwai Gichuhi v Republic [2015] eKLR, where the High Court held that a trial court must consider the available defences, including those under sections 8(5) and (6) of the Sexual Offences Act, and should not approach a defilement case as though conviction is automatic. 24. Lastly, the appellant submitted that his right to a fair trial under Article 50(2)(b), (c), (j), and (k) of the Constitution was violated and that the cumulative effect of the evidential gaps, inconsistencies, and failure to consider his defence rendered the conviction unsafe. He therefore urged the appellate court to quash the conviction, set aside the sentence, and allow the appeal.Top of Form 25. Bottom of Form Analysis and Determination 26. This Court has considered the grounds of appeal, the Record of Appeal, the submissions made and evidence on record as is required of a first Appellate court guided by the Court of Appeal in Okeno v Republic [1972] EA 32, where the Court observed 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 (Pandya v Republic [1957] EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwal v R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10869/eng@2026-07-17 4

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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] E.A 424.” 27. As stated by the Court of Appeal in the above case, a first appellate court must do more than merely review the judgment of the trial court. It is enjoined to reconsider, re-evaluate and re-analyse the entirety of the evidence on record afresh and draw its own independent conclusions, while giving due allowance to the fact that it neither saw nor heard the witnesses testify. It must then determine whether the findings and conclusions reached by the trial court are borne out by the evidence and the law. 28. On that basis, the court finds that the Appellant herein was charged under section 8(1) as read with section 8(3) of the sexual offences Act, which provides that; “ (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement...(3)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.” 29. It is settled that for an accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. 30. As regards the age of the complainant, there is no doubt that PW2 was fifteen (15) years old at the time of the incident. Although the Appellant contended that there was a contradiction regarding the complainant's age, on the basis that the complainant stated during her testimony that she was sixteen (16) years old while her mother testified that she was fifteen (15) years old, the evidence on record sufficiently established her age. The complainant's Birth Certificate, which was produced as PExhibit 1, indicated that she was born on 6th February 2009, thereby showing her to be fifteen (15) years and three (3) months old at the time of the offence. The age of the complainant was therefore conclusively proved through the production of her Birth Certificate, which is the primary and most reliable documentary evidence of age. The use of a birth certificate as conclusive evidence on ascertaining age was reinforced by the Court of Appeal of Uganda in the often-cited case of Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, where the Court held that; -. “ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence, apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…” 31. This court is therefore satisfied that the age of the minor was proved beyond reasonable doubt. 32. On the issue of penetration, the prosecution relied on both the complainant's testimony and the medical evidence. The complainant testified that the Appellant took her to his house, locked the door, removed her clothes, placed her on a bed and had sexual intercourse with her. This testimony was corroborated by the evidence of the Clinical Officer (PW4), who examined the complainant and observed lacerations on the labia majora, redness in the genital area and a foul-smelling whitish vaginal discharge. PW4 formed the opinion that the complainant had been defiled and, in support thereof, produced the P3 Form and the Post Rape Care (PRC) Form as exhibits, both of which confirmed the occurrence of penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10869/eng@2026-07-17 5

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33. The prosecution therefore contended that the complainant's testimony, taken together with the medical findings, sufficiently established penetration within the meaning of Section 2 of the Sexual Offences Act, which defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. This is a finding that the trial court properly arrived at, and which this Court has no reason to disturb and accordingly affirms. 34. As regards the identity of the assailant, the complainant testified before the trial court that she did not know the Appellant prior to the incident. She, however, stated that on the material day she met the Appellant during the day, at around 2 pm on her way home from church. He greeted her and led her to his house, which was situated not far from her home. She spent the entire night in the Appellant's house and was only released the following day at about 11.00 a.m. It is thus clear that the complainant spent several hours with the Appellant from 2 pm till the next day at 11am. This considerable period she spent in the company of the Appellant, coupled with the fact that their initial encounter occurred during the day, afforded her ample opportunity to clearly observe and identify him. 35. Further, the evidence of PW1 and PW3 was consistent that the complainant led them to the Appellant's residence. Upon reaching the house, she pointed out the Appellant as the person who had defiled her. The fact that the complainant knew where the Appellant resided and successfully led both her mother and the police to his residence lends considerable credence to her identification of the Appellant as the perpetrator of the offence. In the circumstances, the possibility of mistaken identity is effectively ruled out. 36. Although the Appellant challenged the absence of corroboration of the complainant's testimony, Section 124 of the Evidence Act dispenses with the requirement for corroboration in sexual offences cases. The proviso thereto permits a court to convict on the sole testimony of the complainant, provided that the court records the reasons for believing that the complainant is truthful. Consequently, the absence of corroborative evidence is not, in itself, fatal to the prosecution's case. 37. Having carefully re-evaluated the evidence adduced by the prosecution alongside the defence tendered by the Appellant, this Court is satisfied that the prosecution proved each of the essential ingredients of the offence of defilement beyond reasonable doubt. The conviction entered by the trial court was therefore safe and is hereby upheld. 38. On sentence, the Appellant was convicted under Section 8(3) of the Sexual Offences Act, which prescribes a minimum sentence of twenty (20) years' imprisonment for the offence of defilement where the child is aged between twelve and fifteen years. The complainant in this case was 15 years old at the time of the offence and therefore fell within the age bracket contemplated under Section 8(3) of the Act. 39. Consequently, the minimum lawful sentence was twenty (20) years' imprisonment. The record shows that the trial court sentenced the Appellant to fifteen (15) years' imprisonment, a sentence that is below the statutory minimum. The trial court was therefore lenient in the circumstances. In the absence of a cross-appeal by the State on sentence, this Court finds no basis for interfering with the sentence imposed and accordingly upholds the same. Disposition 40. a) In the result, the Court finds that the appeal is devoid of merit. b) The conviction and sentence imposed by the trial court are affirmed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10869/eng@2026-07-17 6

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c) The appeal is therefore dismissed. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 17TH JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM. KENNEDY KANDET JUDGE IN THE PRESENCE OF: APPELLANT FROM MAKUENI PRISON MUTHANGU FOR THE RESPONDENT COURT ASSISTANT: JAEL NOSIM pg. 3 JUDGMENT IN MAKUENI HC CRIMINAL APPEAL NO. E059 OF 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10869/eng@2026-07-17 7

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