Kiria Felix Muchangi Alias Kagwima v Republic

4. The Appellant being aggrieved of the conviction and sentence as rendered by the trial court preferred the present appeal with respect to his conviction. In his memorandum of Appeal filed on 27th March 2025, he set out his grounds of appeal as hereunder that; i. The learned trial magistrate erred in both matters of law and fact by convicting and sentencing the appellant to serve 20 years imprisonment without analyzing the evidence of clinical officer whereby the evidence adduced does not proof beyond reasonable doubts that the complainant was defiled since the hymen was old torn broken and there was no evidence of lacerations or spermatozoa seen during the examination. ii. The Learned trial Magistrate erred in matters of law and fact by failing to note there was vendetta between the appellant and the head teacher of the said school. iii. The Learned trial Magistrate erred in matters of law and fact by failing to note that there was no evidence adduced from the alleged lodging to proof that the complainant was defiled in the premises. iv. The Learned trial Magistrate erred in matters of law and fact by misapprehending the evidence adduced and thus arriving to a wrong conclusion. v. The Learned trial Magistrate erred in matters of law and fact by failing to note the key witnesses were not called. vi. The Learned trial Magistrate erred in matters of law and fact by failing to note serious inconsistencies with the prosecution evidence, especially the police reports and the sequence of events, which inconsistencies are a confirmation that I am convicted on framed up charges. vii. The learned trial magistrate erred in matters of law and fact by failing to note that the evidence adduced by the clinical officer was doubtful and inconclusive, and does not therefore prove the charges levied upon me beyond reasonable doubt as is required by law. Analysis of the Prosecution’s case 5. PW1, Timothy Mberia (Clinical Officer, Kanyakine Hospital) testified that he examined the complainant on July 20, 2023, for allegations of defilement occurring in January and July 2023. He found a broken hymen with an old tear, which he classified as "grievous harm" suggestive of penetrative sex. He explained that while lab tests for spermatozoa were negative, this was expected given the 18-day gap between the last incident (July 1) and the examination (July 18/20). He produced the Post Rape Care (PRC) form (Exhibit 1), laboratory reports (Exhibit 2(a) and (b)), and the P3 form (Exhibit 3). 6. PW2, S.K. (Complainant) testified that she was A 14-year-old student. She detailed a grooming process where the accused used "romantic notes" in her science book to coerce her into a relationship. She testified to two specific incidents: one in January 2023 in the school's computer lab/store on a mattress, and a second on July 1, 2023, at xxxxxx lodging in Room 4. She identified the accused in court and noted he used the alias "Felix Kagwima" on Facebook. She produced photographs of Room 4 and its bed (Exhibits 4(a)-(f)), CCTV stills (Exhibits 5(a)-(e)), and her birth certificate (Exhibit 6). 7. PW3, AKN (Headteacher, LA) she testified that she became suspicious after the accused sent a text saying four students "wanted peace of mind". After interrogating students, she learned the accused had posted the complainant's photo on a Facebook account under the name "Felix Kagwima". She confronted the victim, who eventually confessed to the relationship and the sexual encounters. She established the accused’s employment at the school and the timeline of his disappearance from duty in July 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13097/eng@2026-06-23 2

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8. PW4, EK(Complainant’s Mother) testified that she was alerted by a teacher named David that the accused had posted a photo of her daughter on Facebook with the caption "we will go far". She subsequently confronted the school administration and the victim, leading to the police report. She also confirmed the victim's age and re-identified the scene photographs. 9. PW5, PC Valentine Chebungei (Investigating Officer) testified that she visited the school and confirmed the victim's description of the "computer lab" as a store containing used mattresses. She recovered CCTV footage from a neighbouring lodging showing the accused and victim together and produced the CCTV CD (Exhibit 7), an exhibit memo (Exhibit 8(a)), and the accused's employment records (Exhibit 9). 10. PW6, PC Elizabeth Njuguna (DCI Forensic Analyst) testified that she analyzed the CCTV footage, confirming that on July 1, 2023, the accused entered the lodging at 15:02 and the victim followed at 15:06. They were seen exiting at 17:13 and 17:14, eventually walking "hand in hand". She produced 12 extracted photographs (Exhibit 8(b)) and the forensic report and certificate (Exhibits 8(c) and (d)). Analysis of defence case 11. The Appellant Kiria Felix Muchangi offered a sworn defense characterizing the entire case as a fabrication designed to punish him for personal and financial disputes. He claimed the headteacher (PW3) framed him because he insisted on leaving the school to pursue further studies at the Cooperative University of Kenya. 12. He also alleged that in February 2023, during a graduation trip to Mt. Kenya University, the headteacher gave him Kshs. 3,000 for fare but then accused him of "eating" her money and lying when he refused to stay the night with her. He claimed she threatened that he would "regret it". 13. He further testified that a school cook informed him the case could be withdrawn if he paid the headteacher and the complainant's mother Kshs. 80,000, which he refused. During cross-examination, he admitted to being in the vicinity of the lodging captured on CCTV but claimed he was there only because the headteacher was admitted to Consolata Hospital. He stated he went to the "conference hall of the lodging" and only saw the victim and her mother in passing. Analysis And Determination 14. This being the first appellate court, I am expected to subject the entire evidence adduced before the trial court to fresh evaluation and analysis. This I do while bearing in mind the fact that I did not have the opportunity to hear the witnesses and observe their demeanour. For this, I give due allowance. The principles that apply in the first appellate court are set out in the case of Okeno v Republic [1972] EA 32 where it was stated as follows: “ The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v Republic [1957] EA 570.) It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; 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 v Sunday Post, [1958] EA 424.).” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13097/eng@2026-06-23 3

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15. Further, in Mark Oiruri Mose v Republic [2013] eKLR Criminal Appeal No.295 of 2012 the Court of Appeal stated: “ It has been said over and over again that the first appellate Court has the duty to revisit the evidence tendered before the trial Court afresh, analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.” 16. Similarly, the duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336 is as follows: “ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court difering from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 17. 18. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients: a. That there was penetration of the complainant’s genitalia; b. That the accused was the perpetrator and c. The victim must be below eighteen years old. This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said: Going by this definition of defilement… the issues which the court needs to determine…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. 19. In view of the above, I have perused and considered evidence adduced before the trial court together with submissions herein and wish to consider the following: a. b. Whether the ingredients of the offence of defilement were proved. i. That there was penetration of the complainant’s genitalia; ii. That the accused was the perpetrator and iii. The victim must be below eighteen years old. Whether the sentence meted against the appellant lawful https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13097/eng@2026-06-23 4

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20. I will now turn to review the evidence to ascertain if the ingredients of defilement were proved i. Whether there was penetration 21. The Appellant argues in his submissions that the trial magistrate erred by treating an "old" torn hymen as conclusive proof of penetration. He points out that the medical examination, conducted nearly three weeks after the alleged incident, found no fresh lacerations, spermatozoa, or biological traces, and asserts that the court failed to consider non-sexual causes for a broken hymen. 22. The Appellant relied on the court of appeal decision in P.K.W v Republic [2012] eKLR stated as follows: “ Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen.” 23. From the foregoing, absence of hymen per se is not prove of penetration. There has to be other corroborative evidence. PW1, a clinical officer, testified that an examination of the complainant revealed a broken hymen with an old tear. He stated this finding was "suggestive of penetrative sex" and that a blunt object, specifically a penis, was the probable cause. 24. The complainant (PW2) testified explicitly that in January 2023, the accused "inserted his penis into my vagina" while in the school's computer lab. She provided similar testimony regarding the second incident on July 1, 2023, at the lodging. 25. The Appellant argued that the 18-day delay between the last incident and the exam created a "serious gap" and relied on the decision of David Jairo & Ann Achieng v Republic (Criminal Appeal 515 of 2007) [2012] KEHC 1584 (KLR). However, unlike in David Jairo case (supra), where the lack of a timeframe for the injury created doubt, the "old tear" here perfectly aligns with the complainant's narrative of a relationship and assaults beginning months earlier in January 2023. And which evidence is corroborated by the evidence of PW1 and PW2. 26. The Complainant (PW2) gave a vivid and consistent account of penetration on both occasions. The court finds that the physical evidence of an old tear serves to corroborate her sworn testimony rather than serve as the sole basis for conviction. ii. Whether the accused was the perpetrator 27. The Appellant submitted that the charges were fabricated due to a personal grudge held by the school’s Head Teacher (PW3). He detailed a strained relationship where he declined her personal requests and left employment under "bitter circumstances," arguing that the magistrate failed to properly interrogate this motive or apply heightened caution to the prosecution’s credibility. 28. Regarding the alleged incident at a lodging, he highlights the total absence of independent or corroborative evidence. He noted that no DNA, fingerprints, or biological fluids were collected from https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13097/eng@2026-06-23 5

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the scene and argues that the magistrate wrongly equated his "mere presence" shown on CCTV stills with the "commission of the offence". 29. The Appellant contends the investigation was "superficial and inadequate" because the prosecution failed to call "key and material witnesses". These missing witnesses include the student allegedly used as a messenger (Jacob), other students mentioned in the account, and the owners or staff of the lodging who could have verified the booking details. 30. He further argues that the police failed to conduct a "meaningful scientific examination," specifically noting that they did not verify the ownership of the Facebook account where the allegations allegedly first appeared 31. During her testimony, the complainant twice pointed him out directly in the courtroom, stating, "I have reported the accused person (pointing) at accused" and later reaffirming, "I can see him before court (pointing) at accused". 32. The complainant stated that she knew the Appellant well before the alleged incidents as he was her Mathematics and Science teacher at LA.She described how the accused, her teacher, initiated the relationship by writing in her science book that "he had started loving her from last year and he wanted them to be lovers". She initially rejected him, stating she "never knew what he meant" and felt that she felt "not comfortable". 33. Regarding the first assault in the school's computer lab, she stated that the Appellant " closed her mouth using his hands so could not any noise... she felt pain and tried screaming". Following the incident, she remained silent because she "was afraid of reporting the teacher" 34. The Complainant identified the Appellant through his mobile phone number (0728056988), which he had given her at school, and through his Facebook profile, where he used the alias "Felix Kagwima". 35. Other witnesses, including the headteacher (PW3) and the investigating officer (PW5), also pointed out the Appellant in court. PW3 (Headteacher) and PW4 (the mother) testified that the accused posted photographs of the complainant on a Facebook profile under the alias "Felix Kagwima".PC Elizabeth Njuguna (PW6) provided a visual confirmation of the pair's interaction on July 1, 2023. She testified that the footage captured them exiting the Kaje lodgings and, seconds later, showed the "accused and victim are walking hand in hand". iii. The victim must be below eighteen years old. 36. The complainant’s age was proven to be 14 years old, the primary evidence was a copy of her birth certificate, which was produced as Exhibit 6. The complainant testified that she was born on May 14, 2009, making her 13 during the first incident in January 2023 and 14 during the second incident in July 2023.Her mother (PW4) confirmed her birth date as May 14, 2009. The Investigating Officer (PW5) also testified that she obtained the birth certificate, which officially verified her age for the court. 37. The Appellant’s guilt was established to the required standard of proof beyond any reasonable doubt. This court, having re-evaluated the evidence adduced before the trial court and the submission made on this appeal, cannot see any reason to disagree with the finding reached by the trial court. The Appellant’s appeal on conviction lacks merit. The same is hereby dismissed. b. Whether the sentence meted against the appellant was lawful 38. The principles that govern the appellate court's interference with sentencing were aptly stated in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR, restated that: “It is now settled law, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13097/eng@2026-06-23 6

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following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. 39. As regards the sentence, Section 8(3) of the Sexual Offences Act provides for a minimum sentence of twenty (20) years' imprisonment for any person convicted of defiling a child aged between twelve (12) and fifteen (15) years. The sentence meted out by the trial court was therefore legal. The appeal on sentence is similarly dismissed. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MERU THIS 23RD DAY OF JUNE 2026. D. K. RONO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13097/eng@2026-06-23 7

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