Denis Mutua Kitonyi v Republic

2. That the Hon. trial Magistrate erred in law and fact by failing to find that the prosecution never proved the age of the complainant as required in law. 3. That the Hon. trial Magistrate erred in law and fact by failing to find that the appellant was not properly identified as the perpetrator of the offences alleged as defined by the law. 4. That the Hon. trial Magistrate erred in law and fact by failing to find that the witnesses in this case were incredible witnesses whose evidence could not be used to base a conviction. 5. That the Hon. trial Magistrate erred in law and fact in convicting the appellant based on the complainant as single witness without giving the reason for her believing in the said complainant’s testimony. Prosecution’s case 3. After the trial court conducted a voire dire inquiry it certified that the minor did not possess sufficient intelligence to understand nature and meaning of oath and ordered that she would give unsworn statement. The minor proceeded to tell the court that she was at the time in a children’s home but before she used to live with her mother, her sister P and one John Muasya. 4. She added that she and P would sleep on a mattress on the floor and in the same house with John Muasya who she identified in court as the appellant and whose name had been disclosed to her by her mother. She added that she had another dad by the name of Kimanzi who resided in Nairobi. Her mother would go to work in the morning leaving her and P with John Muasya who would cook for them and also prepare the mattress for them to sleep. 5. The child added that Muasya wronged her by doing bad manners to her when P was asleep at night. Her mother would be at work in day and night shifts sometimes going for 24 hours before returning in the morning. Muaysa would remove P and take her on the bed then come where the child was sleeping the do bad manners and touch her breasts. She added that he would remove her clothes or tell her to remove then sleep on her while naked and rape her. She stated further that he would insert his penis into her vagina (in Kiswahili- kitu yake ya kusususu into my pahali ya ksususu). This was the previous year in three different occasions when they had closed school but she could not recall which days of the week it happened. She added that he did not defile her the year she was testifying (2023). 6. The complainant testified further that she informed her aunt T in 2022 which was after a while after which she never wanted to go home. She added that she bled a day after she was defiled. She added that Muaysa told her not to tell anyone and that he would beat her with a cooking stick if she resisted the defilement. She stated that she went to the children’s home in 2023 where she wanted to continue staying. She also stated that she would want to live together with aunt T or Kathini but if her mother relocated, she could go home. She added that Muasya and her mother used to fight and if anyone wronged her going forward, she would report. 7. In cross-examination, she stated that her mother told her to come to court and insisted that she knew the appellant who was her mother’s friend. She claimed that she would report every time the appellant wronged her. She stated further that the appellant and her mother would not fight every day and that the mother learned of the defilement from aunt T and that she was the one who told aunt T. She repeated that the appellant defiled her three times. She concluded by stating that no one heard the appellant beat her. 8. PW2 was Teresiah Kawila Mboya the mother of the complainant who said that she was working at a club in [Particulars withheld] where she moved in July 2022. She told the court that after her daughter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12461/eng@2026-07-29 2

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went to stay with her friend T, she (T) told her that the child had told her that she did not want to go back to the house because the appellant who she was married to had been defiling her. She approached and asked the child who told her the story and said that she had been threatened not to report. The witness reported to the police. She added that she would leave the house at 8 am and return at 11 pm or midnight leaving the kids in the house and that sometimes she would leave the appellant in the house. 9. She added that the child told her that the appellant had started defiling her before they moved to [Particulars withheld]. She added that one day, she went to the house at 9 pm and the appellant started assaulting her and she ran away but he chased and caught up with her and they talked things out then he told her that he meant that her daughter would make him sleep. He was drunk and when she asked him the following day what he meant, he told her to investigate and she would know. The witness added that they had started living together in December 2021 but they parted ways in January 2023 when the child told her about the defilement. 10. PW2 went on and testified further that, they were living in a single room where her two children would sleep on the floor on a mattress while her and her husband would sleep on the bed. The child told her that the appellant would move P to the bed and defile her on the mattress laid on the ground and that he used to beat his children. She stated further that the child turned twelve years in March 2023. She wished that the child would come back home. 11. In cross-examination, the witness stated that the appellant told her that the child would sleep on him. The appellant had threatened the child and that is why she had not told her and he would beat her to prevent her from telling the mother. She added that the child found T to be safe because the appellant threatened and beat her and that the child also witnessed the appellant beat the witness. She added that they separated on 15-01-2023 and that she reported the incident in February. The child had gone to T’s place with P and P came back home but the complainant refused. In re-examination, PW2 clarified that she learned of the defilement in February 2023 and that she was not certain when it began. She concluded by stating that the child left her house due to defilement and the beatings. 12. The third prosecution witness was JM who told the court that on 26-04-2023 at 8.00 pm, he received a call from PW2 who told him that the man who defiled her child was in the area upon which he called and met community policing members who had already arrested the appellant and they proceeded to Athi River police station. In cross-examination, he stated that he came to know the appellant on 26-04-2023 and he had not related with him. He did not follow up why the appellant and PW2 separated and he could not tell whether the defilement report was true. 13. John Njuguna, a clinical officer at Nairobi Women hospital told the court that the child was treated by her colleague one Janet Njiru who had gone for further studies. He had worked with Janet for 2 years and was conversant with her handwriting and signature. He testified that on 11-02-2023 at 4.50 pm, the child aged 10 years complained that her step father would defile her vaginally and severally the last time being January 2023. On examination, she was found to be calm and had no physical injury. The outer genitalia were normal and the hymen had an old scar. She had no anal injury and the vagina was normal. All the lab tests were normal and she had no urinary tract infection. The child was not given any treatment. The witness proceeded to produce GVRC, PRC and P3 forms all dated 11-02-2023 as exhibits. In cross-examination, the witness stated that the complainant had no injury and had no ailment. In re-examination, he stated that the hymen was torn. 14. The fifth and last witness was the investigating officer one Cpl Emily Mbaine attached to Athi River police station. She stated that the case was reported on 11-02-2023 by the child in the company of her mother. The witness narrated the stories as narrated to her by the other witnesses and added that she escorted PW1 and PW2 to Nairobi Women hospital where the child was treated. She added that she https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12461/eng@2026-07-29 3

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went where they used to reside but did not find the appellant and she spoke to the village elders to assist in tracing the appellant since he had no phone. 15. PW5 added that on 26-04-2023, the appellant was found by the village elders, arrested and taken to the police station. She had the minor undergo age assessment because she did not have a birth certificate. Upon assessment, she was found to be 13 years. The witness produced the age assessment report as an exhibit. 15. In cross-examination, PW5 stated that the child and her mum told her that she was 10 but they had no documents to prove the age and upon examination, she was found to be between 12 and 13. The child identified the appellant to the village elders. She was unable to tell the cause of the child’s bleeding as she was not a doctor. She claimed that the appellant took off after defilement and there was no dispute between him and the child’s mother. She confirmed that she was the one who booked and interrogated the appellant at the police station. 16. The witness denied that she planned anything against the appellant as she did not know him. She added that she did not know the precise date of defilement and that she could not confirm whether the appellant had separated with the child’s mother in January 2023. The child identified the appellant to the officer as John but the officer got his full name from his identity card. She insisted in reexamination that the last act of defilement was in January 2023 and the appellant was found in April. PW5 concluded that the child took too long to report due to threats. Defence 17. The appellant testified on oath. He told the court that he would go to Sweet Waters club in [Particulars withheld] to watch football or have drinks where he met the complainant’s mother (PW2) and they got romantically involved. They would go to his house over the weekend when he was not at work and he would escort her back to [Particulars withheld] on Sundays. On 10-10-2022, they came from his place as usual and went to PW2’s place where they found her kids washing their uniforms mixed with a man’s clothes. PW2 pinched the children because she was not happy that they were washing clothes. The appellant claimed that he was not pleased with this action. 18. The appellant added that at that time, T was living with them. T cautioned PW2 not to punish the kids as the mistake was of the person who told them to wash. The appellant enquired whose clothes they were and PW2 told him that they belonged to the caretaker’s brother who would help her fetch water. 19. The appellant added that in December 2023, he asked the children whose clothes they had washed on the aforementioned date and they told him that they belonged to their biological dad who still lived with them and that is what started a grudge between him and PW2 although she told him that what the kids told him was not true. In January (which I presume was of 2023), he decided to go for a gas cylinder and a table he had given PW2 in the company of community policing officer and he was allowed to take his items. 20. In February, PW2 called and told him that she had lost her job at the club and asked for help since the kids were not going to school and she had not paid rent. The PW2’s attempt to reconcile were not successful but on 20-02-2023, she went to his house and he gave her 2,000/= for the kids’ school fees but instead of paying the school fees, she called his relatives in order to take kids to his home but he told the relatives not to take her as they had disagreed. He added that in March 2023, PW2 called him to ask why he had objected and they could not agree and they never talked again. 21. The appellant added that on 26-04-2023, PW2 called at 11 am and enquired where he was and he told her that he was at work and he would let her know when he got to the house. At 7.00 pm, PW2 enquired https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12461/eng@2026-07-29 4

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if he was at home and at 8.00 pm, he heard a knock at his door and a man he did not know came in and asked whether he was Denis and he confirmed and he also confirmed that he knew PW2. The man told him that PW2 had sent him to pick him as she had issues with him. At the gate, he found PW2 and other men and they took him to the police station where he remained till the following morning when he was informed that he had defiled the child and later charged. 22. The appellant denied committing the offence and said that the child had lied. He expressed opinion that the child was coached and swore that he never lived in the same house with PW2 and the case was as a result of a grudge which developed after the kids told him about the clothes and their biological father. 23. I cross-examination, he denied that he was not working and maintained that the child was coached. He admitted that he had not disagreed with T and alleged that T and PW2 used to live in the same house. The people who arrested him took him to the police station without introducing themselves. He admitted that he had no witnesses but PW2 knew them. He claimed that he forgot to cross-examine the complainant on the issue of the other man and claimed further that PW2 threatened him when he was in prison. He admitted that he had not disagreed with the kids and he did not know them well. Analysis and determination 24. I have read the submissions of the appellant dated 14th July 2025 and those of the respondent dated 15th May 2025. The appellant has leveraged his case on his position that the prosecution did not prove the three ingredients of the offence of defilement beyond any reasonable doubt and that the evidence of the witnesses was inconsistent and contradictory. The respondent countered this by submitting that the ingredients were sufficiently proved, the evidence of the witnesses was credible and the conviction was safe pursuant to Section 124 of the Evidence Act. 25. The appellant has begun his submissions with plea to amend his petition of appeal by introducing fresh grounds pursuant to Section 350(2)(v) of the Criminal Procedure Code. That Section give the court power to allow new grounds of appeal but the application should be in writing with a notice to the respondent. The Section provides that; ‘Notice in writing of an application for leave to amend a petition of appeal shall be given to the Registrar of the High Court and to the Attorney-General not less than three clear days, or such shorter period as the High Court may in any particular case allow, before the application is made; and an application for leave to amend a petition of appeal shall be made either at the hearing of the appeal or, if made previously, by way of motion in open court.’ 26. I note that the appellant’s submissions came after the respondent’s and in that case, it will be prejudicial to the respondent if I were to allow the appellant to plead fresh grounds of appeal through his final submissions without having given the respondent an opportunity to object to or address the same. I will therefore proceed on the basis of the grounds contained in the petition of appeal as reproduced elsewhere above. 27. As rightly submitted by both parties, the ingredients of defilement are; age of the victim, the act of penetration and identification of the perpetrator. Save for pleading it in the second ground of appeal, the appellant has not addressed the issue of age in his submissions. There was no contestation about the age of the complainant during the trial in the lower court. The mother of the child spoke of her turning 12 years in March 2023 while the age assessment report produced as prosecution exhibit 5 put her at between 12 and 13. I would in the circumstances hold as the trial court did that the complainant was a child in the age bracket of 12 and 13 years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12461/eng@2026-07-29 5

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28. On penetration, the appellant claims that there was no proof of the same. According to the appellant’s submissions, the complainant’s evidence was not properly corroborated although it was strong and the medical documents were not strong enough to prove penetration. He adds that the fact that the court had observed during voire dire inquiry that the complainant did not possess sufficient intelligence to understand the nature and meaning of an oath, her testimony required corroboration. I do not agree with this position. 29. Whereas in some cases the evidence of a single witness would require corroboration, it is not always the case that an unsworn testimony should be given light weight. The fact that a witness does not understand the nature of an oath does not mean that she will be untruthful. The truth, weight or probative value of evidence or statement does not depend on whether the witness has taken oath or not. The truth is established through scrutiny of the evidence and facts placed before the court. No one can tell how many times courts have been told falsehoods by witnesses under oath. 30. The appellant has sustained his argument that the complainant was coached on how to testify. This to me is his mere suspicion which he is entitled to. In my analysis, the flow of the complainant’s testimony and her firmness during cross-examination does not bring her out as a witness who had been coached on what to say. If indeed she was coached, she would have identified the appellant by his real name and not John Muasya as he had been introduced to her. 31. The complainant gave her testimony as she understood the facts even where they would appear to go against her case. That is what truthful witnesses and litigants do. I find the complainant to have been coherent and consistent on how she was defiled and where she could not remember details, she did not struggle to mend. In addition to my assessment, I consider the fact that the trial court had the advantage of observing the complaint’s demeanour and I must give due allowance to her assessment. 32. The appellant has also submitted that the evidence of PW4 was not corroborative of penetration because there were no physical injuries and all lab tests were normal. It must be noted that the examination of the complaint was done in February 2023 while the complainant stated that she was defiled in 2022. She was actually truthful that she was not defiled in 2023 which in my view would mean that she would not be expected to have fresh vaginal or other injuries related to the defilements. PW4 was clear that the hymen was torn with an old scar which was a sign of penetration and as rightly observed by the trial court, there was no other factor presented that could have occasioned the penetration. I therefore find this line of submissions insufficient to invalidate the evidence of penetration. 33. On identification, the appellant has submitted that he was not properly identified as the perpetrator as the complainant talked of one John Muasya. The evidence is clear that the complainant was well known to the appellant although she referred to him as John Muasya. She was clear that the appellant had been introduced to her as such and had lived with them for some time. The appellant claims that he was not living with PW2 and her children. Even if one was to assume that the appellant was not living with them, he himself in his defence confirmed that he had become well known to the children and the relationship between them had grown to an extent that he was able to discuss with and make enquiries from them about their biological father. 34. I find the evidence of the complainant on how the appellant would be left with them and remove P from the mattress and defile the complainant consistent and believable. The flow of her testimony from her informing T to the mother making a follow up is in my view credible. The appellant’s submissions that the complainant’s family used to live with T is not supported by evidence neither does it shake the strong evidence adduced by the complainant and her mother. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12461/eng@2026-07-29 6

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35. The appellant was well known to the complainant and he confirmed in his defence that there was no grudge between him and the children and therefore I see no reason for the child to frame the appellant. The child is the one who disclosed the ordeal to T without probing from the mother and she only narrated the same to the mother after T disclosed it. The appellant confirmed in cross-examination that there was no grudge between him and T and therefore there couldn’t be any reason for her participating in setting him up. 36. The circumstances of identification in this case are not in my view prone to mistaken identity or error. It was identification by recognition. It was not one of those identifications where the witness would be required to give description of the assailant or identify some of his distinguishing features. The child knew the appellant for a considerable period of time which was confirmed by the appellant himself. 37. Based on the above, I do not hesitate to conclude that the appellant’s identification as the perpetrator of the offence was free of error and sufficient. The other inconsistencies or contradictions stated by the appellant in his submissions are minor and not capable of rebutting the truthfulness of the witnesses. No evidence or testimony of different persons can be identical or similar word for word. Human beings are prone to infractions when describing the same thing or events. What matters is whether the evidence brings out the occurrence of the event or incidence and identification of the persons involved. Mere infractions which are not material and do not go to the root of the case are expected in between the witnesses and I find this scenario obtaining in this matter. 38. In Gichuri v Republic [2026] KECA 1471 (KLR), the Court of Appeal held that; ‘On the issue of the effect of contradictions in the prosecution case, the law recognises that contradictions in evidence are inevitable. However, it is only material contradictions which go to the root of the prosecution case that can vitiate a conviction. Minor discrepancies are excusable and do not automatically weaken the case or fetch an acquittal.’ 39. The appellant has claimed that the court ignored his defence and failed to appreciate his alibi. First, I do not consider the appellant’s defence as a true alibi as it places him in the complainant’s house on several occasions. An alibi is a defence which seeks to establish that the accused person was not at the scene of the crime at the time it is said to have been committed. It has been held that such a defence should be pleaded or raised at the earliest opportunity to enable the prosecution to investigate it. This was so reiterated in Linus Njiru Kimunye v State [2018] KEHC 3857 (KLR) where the court held as follows; ‘Where an accused person relies on the defence of alibi, it must be raised at the earliest opportunity possible so that the prosecution has an opportunity to enquire on that defence. Such defence must be raised as early as when the accused was initially charged.’ 40. In this matter, the appellant raised the issue of what he refers to as alibi during his defence. He did not raise it during cross-examination or when he was arrested or arraigned or at the earliest opportunity when the matter started. In that case, I don’t think that the defence of alibi was available to him and I find his submissions along that line lacking basis. 41. The conclusion from the above is that, this appeal does not have merits and the same is hereby dismissed and the conviction and sentence of the trial court is upheld. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY 2026. B.M. MUSYOKI JUDGE OF THE HIGH COURT. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12461/eng@2026-07-29 7

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Judgment delivered in presence of the appellant and in absence of the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12461/eng@2026-07-29 8

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