Erick Mahobe Itambo v Republic

a. That the learned trial magistrate erred in both law and fact by failing to consider that the evidence adduced by the prosecution was inconsistent and full of contradictions. b. That the trial magistrate erred both in facts and law by failing to observe that the statement of the ofience in herein was defective. c. That the learned trial Magistrate erred in both facts and the law by failing to consider that the medical evidence at the trial was shoddy and below the required threshold. d. That the trial magistrate erred both in facts and law by failing to note that the important element of penetration was not conclusively proved. e. That the learned trial magistrate erred in facts and the law by disregarding the credible and truthful defence of the appellant without giving cogent and reasonable reason for the decision. 5. PW2, GWN, the complainant stated that she lives in, [Particulars withheld] and schooled at [Particulars withheld] Secondary School. She said also the appellant is her friend. 6. On 11th January, 2022 on a Tuesday and Wednesday, the following day, PW2 stated, she did not go to school. instead, PW2 Stated, she called Eric (appellant) to wait for him in Makutano, when she was met the appellant and they boarded a motor bike to Mwaita. At Mwaita, PW2 stated, they bordered another motor bike to Eldoret and went to Eric’s house. At Eric’s house, PW1 stated, she spent the night with Eric and had sex. 7. On 13th January,2022 PW2 stated, with the assistance of the appellant she boarded a vehicle to Kakamega and went to Eric’s mother’s house to be his wife and spent a night there. 8. On 14th January 2022, PW 2 stated, she learned that her relatives in Eldoret have brought issues to Eric and Eric’s mother advised her to go home first. PW2, further stated that Eric’s mother paid her bus fare from Kakamega to Kitale after receiving money from Eric. When she got home, PW2 stated, they went to Kabolet Police Post with her brother PN (PW1) and she spent a night at the post. On 15/1/2022, PW2 stated, she went to Kapsara District Hospital accompanied by her brother and uncle where she was treated and issued with P3 form. 9. PW1, further stated that she was born on 27th April, 2004.On x – examination, PW2 stated that she knew the accused only for one week. 10. PW3, PNW lives in [Particulars withheld] and he is the complainant’s father. PW3, stated, he knew the appellant as the husband to his niece, MW. He also stated that the complainant was born on 22nd April, 2004. 11. On 11th January, PW3 stated when he got home, he was informed byMW (his in law) that the appellant was seen with his daughter on their way to unknown destination at around at around 630pm. Wangui also brought the complainant’s clothes stating she got them in her house. 12. On 12th January 2022, PW3 stated, he went to [Particulars withheld] Secondary School to report that his daughter was missing and he did not know his whereabouts. 13. On cross-examination, PW3, further, stated the girl was picked from Kakamega and that she did not go back home on her own. On being re-examined, PW3 stated, the complainant was picked from Kakamega by Reuben PW3’ brother and Wangui (the accused person’s wife). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13144/eng@2026-07-01 2

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14. Sergeant Amani Matamu, PW4, the investigating officer in this matter produced the complainant’s birth certificate marked P Exhibit 2. He also produced a letter from Friends Secondary School confirming the complainant was a Form 1 student marked P. Exhibit 3 15. PW5, Rueben Rumoei lives in Bonde Sub-County, Transnzoia County and works with National Police Reserve under Kabolet Police Post. PW5 stated that he knows the appellant and that he married his niece. 16. On 13/1/2022, PW5 stated, his brother Paul Njuguna informed him that his daughter, the complainant had gone missing with the appellant. Thereafter, PW5 stated, he went to Baharini Police Station Eldoret with his brother and the complainant’s brother PN. They also went to the appellant’s house, PW5 stated in the company of police officers and they found the appellant with his wife Wangui and the accused was arrested and taken to Baharini Police Station and subsequently taken Kabolet Police Station. 17. PW7, Alex Wafula Sikukulu is a Clinical Officer at Kapsura Sub-County Hospital. PW7 stated the complainant was taken to the hospital by her guardian on 15/1/2022.After examining the complainant’s private parts, PW7 stated, he found that her hymen, PW7, was torn and old looking but no discharge was observed. 18. In his defence, the accused stated that on 12/1/2022 he sought permission from his boss in Kitale and travelled to Eldoret and got there at night. On 13/1/2022, the appellant stated, he met his pastor at around 10.00 am and his wife called informing him there was a girl who was missing and that it was claimed he was eloping her. His wife, PW1 stated, told him she was coming to confirm whether the information she had received was true or false. 19. At around 9.00pm, the appellant stated, his wife got to Eldoret and confirmed he was not with the complainant. At around 10.00 pm, the appellant stated, 2 police officers went to his house at Baharini and inquired about the whereabouts of the complainant and he informed them that he was not aware. The officers, the appellant stated, however arrested him and took him to Baharini Police Station where he was held in custody on 13th and 14th January, 2022 20. On 15/1/2022, the appellant further stated, officers from Kitale Police Station went for him and he was taken to Kebolet Police Post, Trans Nzoia where he was held on 15th and16th January 2022 before he was arraigned at Kitale Law Courts on 17/1/2023.The matter was ,however, transferred to Eldoret Law Court and the appellant was charged with the ofiences herein on 21.1.2022. 21. The issue for determination from the court is whether the prosecution proved the ofience of defilement against the appellant. Being 1st appeal, this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see. Mark Oiruri Mose -vs- Republic (2013) eKLR) 22. Section 8(1) of the Sexual Offences Act provides: “ A person an act which causes penetration with a child is guilty of an ofience termed as defilement’’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13144/eng@2026-07-01 3

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In Section 2 of the Act “ penetration ” is defined as: “ ..partial or complete insertion of the genital organs of a person into the genital organs of another person.” Section 8(4) of the Act provides: “ A person who commits an ofience of defilement with a child between the age sixteen years and eighteen years shall upon conviction be sentenced to imprisonment for a term not less than fifteen years’’ 23. The ingredients of defilement were set out in the case of of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated: “ The critical ingredient forming the ofience of defilement are the age of the complainant, proof of penetration and positive identification of the assailant” 24. PW3, the complainant’s father testified the complainant was born on 22nd April, 2004. PW3, the investigating officer in this case produced a copy of the complainant’s birth certificate (P. Exhibit 2). He also produced a letter by the Principal of Friends Secondary School Bonde (P.Exhibit 3) dated 13.1.2022 indicating the complainant was a form 1 the school. Further, it noted that the age of the complainant was not challenged at the trial. It is therefore my finding that the appellant the complainant was aged 17 years when the alleged ofiences herein occurred. 25. On penetration, PW2 testified that on 11th January 2022 she did not go to school but called by the appellant and they met at Makutano.At Makutano they boarded a motor cycle to Mwaita and another motor bike to Eldoret. At Eldoret, PW1 stated, they went to the appellant’s house where they spent and had sex. The evidence of PW2 is corroborated by PW7, Alex Wafula Sikukulu, a Clinical Officer at Kapsura Sub-County Hospital who examined the complainant’s private parts at the hospital on 15.2.2022 and found her hymen was torn and old. This evidence is captured in the complainant’s P3 form produced in court. It is, therefore, my finding that the complainant’s vagina was penetrated. 26. The complainant testified that the appellant was her friend and travelled together using a motor bike from Makutano to Mwaita. and took another motor bike to Eldoret where they spent a night at the appellant. The appellant himself also admitted he knew the complainant and was her cousin to his wife. It is, therefore, the Court’s finding that the therefore identified as the perpetrator of her defilement based on recognition and there is no chance of mistaken identity. 27. Based on the evidence on record, this court find that the prosecution proved the ofience of defilement in this matter at the trial court beyond reasonable doubt 28. The minimum mandatory prescribed under section 8(4) for defilement of a minor aged 17 years is 15 years. The sentence meted upon the appellant herein is lawful and proper. 29. The upshot of my findings above is that this appeal lacks merit and the same is dismissed. Right of appeal within 14 days DATED, SIGNED AND DELIVERED AT ONLINE VIA MS TEAMS THIS 1ST DAY OF JULY 2026. HON. P. K. ROTICH JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13144/eng@2026-07-01 4

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Appellant Ms. Kirenge for DPP CA - Kipchirchir 3 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13144/eng@2026-07-01 5

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