Charles Maina Busuru v Republic

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 7. Having looked at the Appellant’s Grounds of Appeal, Amended Grounds of Appeal, his Written Submissions and those of the Respondent, this Court noted that the issues that had been placed before it for determination were as follows: - 8. a. Whether the Appellant should be granted leave to amend the Petition of Appeal; b. Whether or not the Prosecution proved its case beyond reasonable doubt; and c. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. The Court therefore dealt with the said issues under the following distinct and separate heads. I. Leave To Amend Petition Of Appeal 9. The Respondent raised a preliminary objection to the amended grounds of appeal on the basis that the Appellant had failed to comply with section 350(2) of the Criminal Procedure Code. It submitted that the Appellant had not formally moved the Court for leave to amend the Petition of Appeal but had instead incorporated a prayer for leave in the amended grounds of appeal and proceeded to canvass the additional grounds in his Written Submissions. It urged the Court to disregard the amended grounds. In the alternative, it addressed each of the additional grounds on their merits should the Court be inclined to grant leave. 10. Section 350(2) of the Criminal Procedure Code provided that, save in the circumstances specified therein, an Appellant could not rely on any ground of appeal other than those set out in the Petition of Appeal unless the High Court had granted leave to amend the Petition. The provision further permitted an application for leave to be made either at the hearing of the appeal or upon notice in writing to the Registrar and the Director of Public Prosecutions. The statute did not expressly prescribe that such leave had to invariably be sought by way of a formal Notice of Motion. 11. The Appellant had expressly invoked section 350(4) of the Criminal Procedure Code in the amended grounds of appeal and had sought leave to introduce two (2) additional grounds of appeal upon receipt of the trial proceedings and Judgment. Although he had not prosecuted that prayer through a formal application before filing his Written Submissions, the Respondent had been served with the amended grounds, had appreciated the issues raised therein and had comprehensively responded to each of them in its Written Submissions. The Respondent had therefore not sufiered any prejudice arising from the procedure adopted by the Appellant. 12. The decision in Mwenda vs Republic [2023] KEHC 18768 (KLR), upon which the Respondent had relied, was distinguishable. In that case, the appellant had neither sought leave under section 350(2) of the Criminal Procedure Code nor invoked the statutory provision before introducing fresh grounds https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12678/eng@2026-07-30 2

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of appeal. The High Court had consequently struck out the amended grounds for want of compliance with the law. Conversely, in Derrick Muema Musyoka vs Republic Criminal Appeal No. 1 of 2019, the High Court had admitted amended grounds where the appellant had expressly sought leave in his Written Submissions, notwithstanding the absence of a formal application. The Court had held that the omission constituted a procedural irregularity that had not occasioned prejudice to the respondent. 13. In the circumstances of this appeal, the Court was satisfied that the Appellant had sought leave, albeit irregularly, and that the Respondent had adequate notice of, and fully addressed, the additional grounds of appeal. The irregularity had related to the manner in which leave had been sought rather than to the absence of a request for leave. Guided by Article 159(2)(d) of the Constitution and in the interests of substantive justice, particularly in a criminal appeal where the liberty of the Appellant had been at stake, the Court granted leave to amend the Petition of Appeal and admitted the additional grounds for determination on their merits. 14. The Court considered Grounds of Appeal (1) and (6) of the Petition of Appeal and found that they did not constitute substantive grounds of appeal capable of determination on their own. 15. With regard to Ground (1), the Appellant merely stated that he had pleaded not guilty to the charges. The Court therefore found that Ground (1) did not raise a substantive issue for determination. 16. With regard to Ground (6), the Court found that the same was in the nature of a prayer rather than a ground of appeal. The Court treated Ground (6) as a prayer for orders rather than a substantive ground of appeal. 17. Accordingly, the Court considered the remaining grounds of appeal in the Petition of Appeal and the subsequent grounds of appeal in the Amended Grounds of Appeal in determining whether the Prosecution had proved its case beyond reasonable doubt and whether the conviction and sentence could be sustained. II. Proof Of Prosecution’s Case 18. Ground of Appeal No (2), (3) (4), and (5) of the Petition of Appeal and Amended Grounds of Appeal No (1) and (2) were dealt with under this head. 19. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the ofience of defilement. 20. It is now settled that the ingredients of the ofience of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR. This court dealt with the same under the following distinct and separate heads. A. Age 21. The Appellant submitted on the issue of age. He stated that the Prosecution was required to prove the essential ingredients of the ofience of defilement beyond reasonable doubt. He relied on the case of Dominic Kibet Mwaregig vs Republic (2013) eKLR, and submitted that the Prosecution was required to prove penetration, the identity of the perpetrator and the age of the complainant. 22. The Respondent submitted that the Charge Sheet indicated that the Complainant, M.W (hereinafter referred to as “PW 1”) was Sixteen (16) years of age at the time of the commission of the ofience. It further submitted that the age of PW 1 was not in dispute. PW 1 had testified that she was sixteen (16) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12678/eng@2026-07-30 3

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years old, while CN (hereinafter referred to as “PW 2”) her mother, had testified that PW1 was born on 9th July 2006. The Respondent submitted that although the birth certificate was not produced in evidence, the same had been referred to and marked during the trial. The Respondent contended that the Trial Court properly relied on the testimony of PW 2 in establishing the age of PW 1 and correctly found that she was sixteen (16) years old at the time of the ofience. 23. It relied on the case of Moses Nato Raphael vs Republic [2015] eKLR where the Court of Appeal addressed the issue of uncertainty regarding the age of a complainant in a defilement case. It submitted that proof of age for purposes of establishing the ofience of defilement ought not to be confused with proof of age for purposes of determining the appropriate sentence. It contended that once it was established that the complainant was below the age of eighteen (18) years, the ofience of defilement was proved, and that the exact age of the PW 1 only became relevant at the sentencing stage. 24. The Respondent further relied on the decision in Francis Omuroni vs Uganda Criminal Appeal No.2 of 2000 and submitted that in defilement cases, medical evidence was not the only means through which the age of a complainant could be proved. The Respondent submitted that age could also be established through other evidence, including a birth certificate, the testimony of the complainant’s parents or guardian, as well as by observation and common sense. It contended that the Trial court properly relied on the evidence presented before it in determining the age of PW 1. 25. Notably, the Trial court, having considered the issue of age, held that there could not have been better evidence of the complainant’s age than that of her mother, PW 2, who was the person who knew the date of the complainant’s birth. Further the Trial Court noted that the doctor had estimated the complainant’s age to be sixteen (16) years. This court was satisfied that PW 1’s age was proven beyond reasonable doubt and that she was a child at all material times. B. Identification 26. The Appellant submitted that the Prosecution was required to prove the essential ingredients of the ofience of defilement beyond reasonable doubt and placed reliance on the case of Dominic Kibet Mwaregig vs Republic (Supra), and submitted that the Prosecution was required to prove: penetration, identity of the perpetrator; and the age of the complainant. 27. The Appellant submitted that the Prosecution had failed to prove beyond reasonable doubt that he was the person who committed the ofience. He contended that the evidence relating to his identification was insufficient and did not meet the required legal threshold. 28. The Respondent further submitted that the Appellant did not controvert PW 1’s evidence regarding his identification during cross-examination and did not challenge the evidence that they attended the same church. It submitted that PW 1’s evidence was not merely one of identification but of recognition, given that the Appellant was a person known to her. 29. The Respondent relied on the decision in R vs Turnbull and submitted that although recognition may be more reliable than identification of a stranger, the court must nevertheless be cautious since mistakes in recognition can occur. It contended that, in the circumstances of this case, the evidence of PW 1 and PW 2 demonstrated that the Appellant was a person familiar to them and that there was no possibility of error in his identification. 30. A perusal of the proceedings showed that PW 1 testified that she was familiar with the Appellant as he used to be a member of their church and played keyboard at the Christian Outreach Church. PW 2 confirmed and stated that the Appellant was a member of the same church congregation where they all worshipped. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12678/eng@2026-07-30 4

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31. Further perusal of the proceedings showed that the incident occurred during daytime and PW 1 had conversed with the Appellant moments before he pushed her to the ground. 32. This court noted that PW 1 was the principal identifying witness, having testified as to the identity of the Appellant as the person who committed the ofience. PW 2 corroborated PW 1’s evidence by confirming that the Appellant was known to them and was a member of the same church where they worshipped. The evidence on identification was not based solely on the testimony of PW 1 but was supported by the evidence of PW 2. 33. The Court further noted that under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), although the law does not require corroboration of the evidence of a complainant in a sexual ofience, the presence of corroborative evidence may strengthen the Prosecution’s case. In the present case, PW 1’s evidence on identification was supported by the testimony of PW 2. 34. Notably, the proviso of Section 124 of the Evidence Act states that: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the Prosecution in proceedings against any person for an ofience, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual ofience, the only evidence is that of the alleged victim of the ofience, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (emphasis).” 35. There could not, therefore, have been any possibility of a mistaken identity of the Appellant. This court thus came to the firm conclusion that the Prosecution proved the ingredient of identification which was by recognition. C. Penetration 36. The Appellant submitted that the Prosecution was required to prove the same through either direct evidence or expert medical evidence. He submitted that the Prosecution relied on the evidence of PW 1 and the medical evidence produced by PW 4. 37. He submitted that PW 1 had testified that while on their way home from church, he called and informed her that his wife was calling from a bush. The Appellant reiterated the evidence of PW 1. 38. The Appellant, however, challenged the sufficiency and credibility of PW 1’s evidence and submitted that the Trial Court ought to have subjected the said evidence to a more critical examination. His submission was that PW 1’s testimony lacked sufficient sensory details regarding the alleged act, including her mental state, how she felt during the incident, whether she experienced pain or bleeding, and what occurred thereafter. 39. The Appellant placed reliance on the case of Julius Kioko Kiviva vs Republic 205 eKLR and submitted that evidence of sensory details, including what a complainant saw, heard, felt, or experienced, was relevant in establishing penetration. He urged the Court to find that the Prosecution had failed to prove the ingredient of penetration beyond reasonable doubt. 40. The Respondent submitted that penetration was an essential ingredient of the ofience of defilement and was required to be proved beyond reasonable doubt. It relied on the decision in Sammy Charo https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12678/eng@2026-07-30 5

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Kirao vs Republic [2020] eKLR which adopted the reasoning in Bassita vs Uganda S.C. Criminal Appeal No. 35 of 1995 that penetration could be proved through direct or circumstantial evidence. It submitted that although medical evidence was desirable, it was not a mandatory requirement in every case, provided that the evidence presented was sufficient to prove the ofience beyond reasonable doubt. 41. It submitted that PW 1 gave a clear and consistent account of the events leading to the ofience. PW 1 testified on the circumstances surrounding the incident and identified the Appellant as the person responsible. 42. The Respondent contended that PW 1’s evidence remained consistent and was not shaken during cross-examination, particularly regarding the identity of the Appellant and the circumstances in which the ofience occurred. 43. The Respondent further submitted that PW 1’s evidence was corroborated by medical evidence produced at trial. It submitted that the medical evidence confirmed that an ofience had occurred and was consistent with PW 1’s account of events. It maintained that the ingredient of penetration had been sufficiently proved. 44. The Respondent submitted that PW 1 had given sufficient particulars of the incident for the Court to determine that penetration had occurred. It contended that the absence of certain details relating to the complainant’s personal experience did not, by itself, render her evidence unreliable or insufficient. 45. The Appellant further challenged the medical evidence adduced by PW 3, submitting that while the P3 Form, PRC Form and treatment notes confirmed that the complainant was pregnant, the medical evidence did not establish that it was him who was responsible for the pregnancy. He contended that no spermatozoa or other seminal evidence was detected, no DNA analysis was conducted, and not other scientific evidence linked him to the ofience. He further submitted that the Prosecution failed to call material witnesses and the Trial Court failed to adequately consider his defence that other suspects had been arrested and later released. Consequently, he argued that the Prosecution failed to establish the requisite nexus between him and the ofience, rendering the conviction unsafe. 46. The Respondent submitted that the Prosecution was under no obligation to call a particular number of witnesses to prove its case. He relied on Section 143 of the Evidence Act, Cap. 80 Laws of Kenya, and submitted that the evidence adduced was sufficient to establish the charge beyond reasonable doubt. 47. The Respondent relied on the decision in Bukenya & Others vs Uganda (1972) E.A. 549 and submitted that an adverse inference for failure to call a witness only arises where the evidence tendered by the Prosecution is barely adequate. It contended that, in the present case, the evidence on record was sufficient and therefore no adverse inference ought to be drawn. 48. The Respondent also relied on Julius Kalewa Mutunga vs Republic and submitted that the choice of witnesses to be called lay within the discretion of the Prosecution, and that there was no evidence that such discretion had been exercised for an improper purpose. It contended that the Appellant had neither identified the crucial witnesses nor demonstrated how their evidence was detrimental to the Prosecution’s case. 49. The Respondent submitted that the Appellant’s defence consisted of mere denials and did not cast any doubt on the Prosecution’s evidence. It contended that although the Appellant stated that there were other suspects who had been released, he neither raised that issue during cross-examination of the Prosecution’s witnesses nor tendered evidence to substantiate the same. 50. On the issue of failure to conduct a DNA test, the Respondent submitted that was not fatal to its case. It argued that the ofience of defilement required proof of penetration and not proof of paternity. In https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12678/eng@2026-07-30 6

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support it relied on Aml vs Republic 2012 eKLR Mombasa, where the court held that the ofience of rape or defilement may be proved through the evidence of the complainant or other admissible evidence and is not dependent on DNA evidence. 51. The Respondent therefore submitted that the failure to call the witnesses or to conduct a DNA test did not weaken the Prosecution’s case, and urged the court to uphold both the conviction and the sentence imposed by the Trial Court. 52. Notably, PW 3 form confirmed that a pregnancy test had been conducted and the results were positive. The Court further noted that the PRC form on examination of PW 1, as produced, the P3 Form, Post Rape Care (PRC) Form similarly indicated that a pregnancy test had been carried out and had yielded positive results. 53. As had been stated hereinabove, any contradictions or inconsistencies were insignificant and did not afiect the inference of guilt on his part. The witnesses who were called by Prosecution adduced sufficient evidence to establish the charge. 54. In the premises foregoing, this court found and held that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt that the Appellant defiled PW 1 on 10th April 2022 as there was proof of defilement as PW 3 testified. 55. In the premises foregoing, Ground of Appeal No (2), (3) (4), and (5) of the Petition of Appeal and Amended Grounds of Appeal No (1) and (2) were therefore not merited and the same be and are hereby dismissed. II. Sentence 56. The Appellant urged this Court to allow the appeal, quash the conviction, set aside the sentence, and order his immediate release. 57. The Respondent submitted that the sentence was safe and proper and should be upheld. 58. The Appellant herein was sentenced under Section 8(4) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: “ A person who commits an ofience of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years” 59. This court could not therefore fault the Trial Court for having sentenced him to fifteen (15) years’ imprisonment as that was lawful. 60. Notably, in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR, the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing ofiences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. 61. However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. The Supreme Court directed the relevant organs to abide by its decision noting that the appellant therein had since been released from prison. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12678/eng@2026-07-30 7

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62. As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercising of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed. 63. Going further, this court was mandated to consider the period he spent in remand while his trial was on going as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 64. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that: “ Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis court). 65. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that: “ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: Time already spent in prison by the convict…” 66. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic (Supra). 67. A perusal of the Charge Sheet indicated that the Appellant was arrested on 10th October 2022. He was sentenced on 29th November 2023. The period that he spent in custody while his trial was ongoing ought to have been taken into account in line Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). Disposition 68. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 2nd December 2024 and filed on 3rd December 2024 and Amended Grounds of Appeal dated 10th June 2025 by hand and filed on 30th September 2025 were not merited and the same be and are hereby dismissed. 69. For the avoidance of doubt, the period that the Appellant spent in custody between 10th October 2022 and 29th November 2023 be and is hereby taken into account in line Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) while computing his sentence. 70. It is so ordered. DATED AND DELIVERED AT NANYUKI THIS 30TH DAY OF JULY 2026 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12678/eng@2026-07-30 8

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