Solomon Mugambi v Republic

process and when she tried to scream he held her mouth. After he was through he left. He left her bleeding from her genital organs. He had warned her not to report to anyone about it. 6. On 2/9/2013 the victim went to school. At break time, the teacher (PW-3) noted that she was walking with a limp. She alerted other teachers about her observation. They called her and asked her what was the problem. She appeared shy and refused to disclose. PW-3 took her aside and interviewed her in confidence. She gathered courage and informed her that a person called Solomon Mugambi had sex with her in a banana plantation two days before. PW-3 informed the Head teacher about it. They then informed (PW-2). 7. The matter was reported at Githingo Police Station on 2/9/2013 at 3.00 Pm. PW-5 investigated the case. She booked the report in the OB and took the victim at Githingo Dispensary. PW-4, a Clinical Officer in the said Dispensary examined the victim. She was walking with a limp and said she was defiled by someone known to her. She was mentally retarded. Upon examination of her private parts, PW-4 noted that the hymen was broken. She had blood discharged from the vagina. There were numerous epithelial cells indicating of friction. There were lacerations on the labia Majora, which was reddish and tender, indicative that there was penetrative sex. She was treated and the P-3 Form filled. 8. PW-5 then had the Appellant arrested and charged with the offence. 9. The Appellant in his defence stated that he’s Solomon Mugambi. He comes from Meru and does casual jobs. He alleged that he has a brother called Muriungi who stays at the same place with the victim. The victim had a grudge with the said brother. 10. The trial Court evaluated the evidence and found the Appellant guilty for the offence. He was convicted on it and sentenced to serve life imprisonment. 11. Dissatisfied with the said conviction and sentence, he appealed to this Court on the grounds that:1. Ground One:- The sentence of life imprisonment violated Articles 50(p)(q) of the Constitution and failed to meet the objectives of sentencing under the Sentencing Guidelines, Section 216, and Section 389 of the CPC. 2. Ground Two: The ingredients of the offence of defilement were not proved – namely; age and penetration. 3. Ground Three: The case was riddled with inconsistencies and contradictions that went to the root or the prosecution’s case. 4. Ground Four : The charge sheet was fatally defective. 5. Ground Five: The provisions of Section 169 of the Criminal Procedure Code were not adhered to. 12. The Appeal was canvassed by way of Written Submissions and only the Appellant filed submissions. 13. An Appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination and to the Appellate Court’s making own decision on the evidence – Okeno –vs- Republic (1972) EA 32. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12220/eng@2026-07-27 2

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14. The offence of defilement is created under Section 8(1) of the Sexual Offences Act, No. 3 of 2006, which provides:“ A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” 15. To establish the offence, the prosecution must prove three essential ingredients beyond reasonable doubt. 1. Proof that the victim was a child (age). Here the prosecution must prove that the victim was below the age of Eighteen years at the time of the alleged offence. This is a fundamental ingredient because the offence only exists where the victim is a child. Age may be proved through a Birth Notification Note, Birth Certificate, Baptismal Card, Age Assessment Report, School Records, apparent age as may be noted by the trial Court and recorded, and also by oral evidence where documentary evidence is unavailable. In Fappyton Mutuku Ngui –vsRepublic (2014) KECA 570 (KLR), the Court of Appeal held that:“ Conclusive proof of age in cases under the Sexual Offences Act does not necessarily mean Birth Certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used.” 16. In this case, a Birth Notification Note was availed showing the victim was born on 10/12/2002. Since the offence was committed on 31/8/2013, and the victim would have attained 11 years on 10/12/2013, on 31/8/2013 she was therefore 10 years old. Her age was therefore established by the prosecution beyond reasonable doubt. 17. The next ingredient for the offence is proof of penetration. 18. Section 2 of the Sexual Offences Act defines penetration as:“ The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 19. The definition is therefore clear that even partial insertion is sufficient to constitute penetration. 20. Penetration may be proved by the complainant’s evidence, Medical evidence, or both, provided the evidence establishes the fact beyond reasonable doubt. 21. In this case the victim stated the Appellant accosted her while in the farm fetching grass for cows. He laid her down, undressed her and then undressed. He then penetrated her genital organs with his. She felt pain and bled. 22. The teacher (PW-3) and the Clinical Officer stated that she was walking with a limp. Upon examination the hymen was broken, she had blood discharge from her vagina, there were numerous epithelial cells, indicative of friction, there were lacerations on Labia Majora, which was reddish and tender. The evidence was to the effect that there was penetrative sex. 23. Weighing the foregoing evidence, there’s no doubt at all that the victim had been penetrated. 24. The third ingredient is of identification or recognition of the suspect as the real culprit. 25. The Appellant herein was well known to PW-1 and PW-2 as he was working in the neighbouring homestead where he was herding animals. The victim disclosed his name as Solomon Mugambi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12220/eng@2026-07-27 3

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which’s his correct name. Though he was not clear in his defence on whether he was fixed due to the alleged grudge between the victim and his brother Muriungi or he was mistaken for the alleged Muriungi, the evidence is convincing in that he was properly recognized as the real culprit. The incident happened during the day and in an open area where visibility was doubtlessly clear. 26. The bottom line is that the offence of defilement was proved by the prosecution, against the Appellant beyond reasonable doubt, and he was rightly convicted of it. 27. As regards the Imposed Life Imprisonment, the case of Republic –vs- Ayako (Petition E002 OF 2024) (2025) KESC 20 (KLB) is vivid, where the Supreme Court held that; Life Imprisonment remains a lawful and constitutional sentence under Kenyan Law. 28. A sentence of life Imprisonment means imprisonment for the convict’s natural life. 29. Given the foregoing explicit legal position, I need not add more insights on the same. 30. The bottom line is that the appeal lacks merit and is hereby dismissed. DATED AND DELIVERED AT MERU THIS 27TH DAY OF JULY, 2026. S.M. GITHINJI –JUDGE 27/7/2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12220/eng@2026-07-27 4

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