Republic v Mbatha (Sexual Offence E063 of 2024) [2026] KEMC 77 (KLR)

leaving R near her home, which involved crossing a river without a bridge, the accused led PW1 through a macadamia and cofiee plantation. PW1 stated that the accused, who had a torch, stepped on her shoes twice to trip her. He then pulled her into the farm, removed her leso, and forced her down onto his coat, which he spread on the fioor. He removed her biker and underwear and defiled her. She stated that he applied saliva during the ordeal and that she cried in pain. Afterwards, he gave her Kshs. 20 for sweets and told her to wait until a passing drunkard had gone. 5. During cross-examination, PW1 stated that she saw the accused in Sunday school and that he attended the competition with them. She clarified that he gagged her mouth with the sleeve of his sweater and defiled her five times. She denied being on her menses, noting they were due on the 15th. She stated she could not scream because he placed his lips on hers. 6. In re-examination, she clarified that the Sunday school teacher chose the accused to escort them. She reiterated that he inserted and removed his penis approximately five times, applying saliva each time. She afirmed she had not lied to the court. 7. PW2, Catherine Kamene Mwalili, the complainant’s mother, testified that her daughter left for the competition at 7:00 AM. Later that evening, the Sunday school patron, Anne Ngei, called her to wait for the child at Kituvo School. When she did not find her there, she went home and found PW1 preparing to take a bath. Upon questioning, the child disclosed that "Paul" had defiled her. PW2 screamed for help and called church members Jackson and Anne Ngei. They took the child to Kathiani Level 4 Hospital after reporting to the police. 8. During cross-examination, PW2 confirmed she had seen the accused in church and that he served in the Sunday school. She stated that the child had not yet started her menstrual period. 9. In re-examination, she stated that the Sunday School Patron, Anne Ngei, was the one who informed her that the accused had been tasked to escort the child home. She testified that there was no prior grudge between her family and the accused. 10. PW3, PC Benson Mwangi, the Investigating Oficer, testified that on 8th November 2024, he received the report from PW2. He took the child to the hospital, where defilement was confirmed. He visited the scene at the Kituvu cofiee plantation and recorded witness statements. He produced the bloodstained underwear and the Kshs. 20 coin given to the victim, as exhibits. He noted that the accused was known to play the piano in church. During cross-examination, he afirmed that he had arrested the accused and that the victim had positively identified him. 11. PW4, Victoria Munyao, a Clinical Oficer, testified that she examined the victim on the night of 8th November 2024 at around 7:00 PM. She was the author of the Post Rape Care (PRC) and P3 forms. She noted that the victim's pants were soaked in blood. Clinical examination showed dry blood on the labia majora and the mons pubis. She further noted a lacerated vaginal orifice and a freshly perforated hymen, which was still bleeding. There was also a notable whitish discharge mixed with blood. Laboratory tests (High Vaginal Swab) showed numerous spermatozoa, blood cells, and pus cells. 12. During cross-examination, she clarified that while the external genitalia was "normal" (meaning no congenital deformities), the internal injuries were indicative of recent defilement. She stated the injuries were likely two hours old. The Defence Case 13. The accused gave sworn testimony. He denied the charges, stating he is an orphan raised in a children’s home. He said he worked as a shamba boy for a neighbour, Martin. He alleged that his employer owed him Kshs. 16,000 in unpaid salary, and had threatened him after he asked for the money. According https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/77/eng@2026-02-05 2

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to him, that is the reason he was charged. He claimed he was at work with his boss at the time of the alleged incident and that his arrest at 5:00 PM was a setup by his employer. He denied knowing the complainant or her mother before the case. 14. During cross-examination, he admitted working in Kituvu but denied being in church on the day of the festival. He alleged that the investigating oficer assaulted him during the statement recording. He claimed his boss, Martin, refused to testify on his behalf. Analysis and Determination 15. In determining this matter, I rely on the principles set out in Daniel Maina Wambugu v Republic [2018], where the court held that: “ Going by the definition, for the state to sustain a conviction against an ofiender the following elements must be proved beyond reasonable doubt: 16. i. Penetration of the male ofiender into the genitalia of the female victim. ii. The age of the child must be established in view of Section 8(1), (2), (3) and (4) of the Sexual Offences Act. iii. Evidence that the accused was positively identified as the perpetrator.” I further guide myself by Section 124 of the Evidence Act, which provides that the court may convict on the sole evidence of the victim if satisfied that the victim is telling the truth. This was interpreted in Robert Kaswere Kiti v Republic [2021] eKLR, where the court observed: “ Parliament drastically qualified Section 124 of the Evidence Act to enable a court in a sexual ofience case to convict on the sole evidence of a child of tender years if satisfied that the child was telling the truth... the courts shall no longer be hamstrung by requirements of corroboration... if it is satisfied that the child is truthful.” Age of the Minor 17. The complainant’s age was established through a birth certificate indicating she was born on 3rd December 2011. Corroborated by PW4, I am satisfied the complainant was a child aged 13 years at the time of the incident. 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.” In this case, PW1 gave a detailed account of the accused removing her clothes and inserting his penis into her vagina multiple times. The medical findings recorded in the Post Rape Care Form and P3 Form show that the child had dry blood on the labia majora, blood- soaked pants, a lacerated vaginal orifice, a freshly perforated hymen, and a whitish discharge with blood. Furthermore, the High Vaginal Swab revealed the presence of spermatozoa. These findings constitute concrete proof of penile-vaginal penetration. Identity of the Perpetrator and the Defence of Alibi 19. The accused raised an alibi defence, claiming he was at work. On the burden of proof regarding an alibi, I rely on the decision in Kiarie v Republic [1984] KLR 739, which held that an alibi does not https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/77/eng@2026-02-05 3

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impose a burden of proof on the accused; rather, the burden is on the prosecution to prove the case beyond a reasonable doubt, including the accused's presence at the scene. The Court held: “ An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is suficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.” 20. It is therefore a settled principle of law that an accused does not bear the burden of proving an alibi. In this case, I find that the alibi was successfully displaced by the prosecution's evidence. The accused raised this alibi for the first time during the defence stage. At no point during the cross-examination of the investigating oficer (PW3) or the other prosecution witnesses was it suggested that the accused was elsewhere at the time of the ofience. The prosecution's evidence overwhelmingly placed the accused at the scene. Furthermore, if he indeed had a misunderstanding with the employer, I do not see how that extended to the complainant’s family. The child had absolutely no reason to falsely implicate him in the ofience. Conclusion 21. I am satisfied that the prosecution has established beyond reasonable doubt that the complainant was a child aged 13 years, that penetration occurred, and that the accused was positively identified as the perpetrator. I accordingly convict the accused for the ofience of defilement contrary to Section 8(1), as read with Section 8(3), of the Sexual Offences Act. 22. Following the conviction of the accused for the ofience of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, this court must now determine the appropriate sentence. I am guided by the Supreme Court of Kenya in the case of Julius Kitsao Manyaso v Republic [2023] KESC 36 (KLR) , which clarified that the sentencing provisions under the Sexual Offences Act carry mandatory minimum sentences. The law prescribes a minimum sentence of 20 years imprisonment for the defilement of a child aged between 12 and 15 years. In light of this precedent, this court lacks the discretion to impose a sentence below the prescribed statutory minimum. 23. In compliance with Section 333(2) of the Criminal Procedure Code, the court is required to take into account the period an accused person has spent in custody. The record indicates that the accused was arrested on 9th November 2024. As of today, 5th February 2026, the accused has served approximately 1 year, 2 months, and 27 days in remand. With the statutory minimum period being 20 years, the remainder to be served is 18 years and approximately 9 months. 24. Consequently, I sentence the accused, Paul Mwinzi Mbatha, to serve the remainder of the mandatory minimum term of 18 years and 9 months' imprisonment. He has 14 days to appeal against both the conviction and the sentence. DELIVERED, SIGNED AND DATED THIS 5TH DAY OF FEBRUARY 2026. C. C. OLUOCH CHIEF MAGISTRATE In the presence of: Prosecution Counsel - Ms Achieng Court Assistant – Catherine Ms Achieng: He has no previous records. Mitigation: I ask the court to have mercy. Sentence Ruling DATE: 2026-02-05 12:12:57 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/77/eng@2026-02-05 4

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