Mbinya v Republic (Criminal Appeal E107 of 2025) [2026] KEHC 5026 (KLR) (22 April 2026) (Judgment)

Mbinya v Republic (Criminal Appeal E107 of 2025) [2026] KEHC 5026 (KLR) (22 April 2026) (Judgment) Neutral citation: [2026] KEHC 5026 (KLR) Republic of Kenya In the High Court at Makadara Criminal Appeal E107 of 2025 J Wakiaga, J April 22, 2026 Between Peter Ochieng Mbinya Appellant and Republic Respondent (Being an appeal against the original conviction and sentence in SO No 35 of 2017 of the Chief Magistrates Court at Makadara) Judgment 1.The appellant was charged with the offence of defilement contrary to section 8(1) as read with Section8(3) of the Sexual Offences Act the particulars of which were that on diverse dates between 1st to 4th December 2016 at Ruai Location in Njiru Sub -County intentionally and unlawfully caused his penis to penetrate the vagina of MNM a child aged 14 and half years. He faced an alternative charge of committing an indecent act with a child the particulars of which were that on the same date he touched the complainant’s private parts namely sexual organ (vagina) with his hands. 2.He was convicted and sentenced to serve twenty (20) years imprisonment and being dissatisfied with the conviction and sentenced filed this appeal at the High Court Criminal registry at Milimani being Criminal Appeal No E133of 2024 through leave granted in Misc. Application No E165 of 2024 and raised the following grounds of appeal;a.The court erred in failing to find that penetration was not proved.b.That the age of the complainant was not provedc.That there was no proper identification of the appellantd.The conviction was based upon the evidence of incredible witnessese.The conviction was based upon the complainant’s single evidence without giving reason for believing her. 3.By an order issued on the 13th February 2025, the matter was transferred to this registry for trial and determination and directions issued thereon upon admission for its disposal by way of written submissions. Submission 4.The appellant filed written submissions which he relied upon in which it was submitted that the complainant did not disclose to the appellant that she was under age given that she had given birth by the time they met and therefore the court failed to consider the defence e under section 8(5) of the Act. 5.On behalf of the respondent it was submitted that penetration was proved through the evidence of the compliant who stated that the appellant was her boy friend and that the father of the same was aware of the illicit relationship since they had been in a relationship since she was in class eight and that the appellant took her to his house where they had unprotected sex which was consensual which was corroborated by the evidence of PW2 the Doctor. 6.It was contended that the age of the victim was proved through her birth certificate produced by PW7 the Investigating Officer which age was not contested by the appellant, the same having been born on 2/5/2002and that the appellant was identified by the witnesses as a boda boda rider in Ruai area where they lived and by PW2 as her boy friend for a long period and therefore identification was positive and free from error in support of which reference was made to the case of Mercy Chelangat versus Republic [2022] eKLR 7.The appellant defence of being framed up since nobody saw him with the victim was considered by the court and rightly dismissed. It was contended that failure to call the two friends of the victim did not affect the prosecution case in view of the provision of section 124 of the Evidence Act provided that the witness is telling the truth and that failure to call the witnesses would only entitle the court to make adverse inference as was stated in the case of Oloro and Daltanyi Versus Regina {1956] 23 EACA 49 but in this case failure to call the said witnesses would not attract adverse inference in light of the evidence on record. 8.On sentence it was submitted that the same lawfully provided for under section 8(3) based on the age of the complainant which was fir the ages between twelve and fifteen years to be imprisonment fir a term not less than twenty years. Proceedings 9.This being a first appeal, the appellant is entitled to a re-evaluation of the evidence tendered before the trial court while giving an allowance that unlike the trial court it did not have the advantage of seeing and hearing witnesses as was stated in the case of Okeno v republic. 10.In this matter the victim was examined by PW1 Dr. Kizzie Shako whose evidence was that her external genitalia and hymen were normal with structure and multiple old tears caused by previous penetration. The victim was aged 151/2 years as at the time of proceeding stated that she was on holiday after KCPE and so she decided to call her boyfriend using her mothers phone since her parents had gone for mass, since her dad was a CID officer and had suspected that she had a boyfriend and had taken her phone to use in tracing her boyfriend , the appellant asked her how the investigation were going on. 11.They then agreed to meet at Juwema area only for a police car to come by so they decided to go to his house and since his uncle was at home they decided to go for a walk up to 11.00pm and since her dad was following them they decided to go friend house where they spent the night and the following morning they passed through the appellants aunts place who advised her to go back home since she did not want any trouble, they left the aunt placed and she advised the appellant to look for a places so that they could spend the night which he did and had unprotected sex. She stated that she left home on 1st and returned on the 4th after her parents had reported her missing and in cross examination stated that the appellant did not force her into having sex or going out with him and that they only had sex on the 3rd of December 2016. 12.PW3 her mother stated that on the 1st her husband called her and told her that the compliant was not at home , they then started to look for her until on Sunday when they received a call that she had been found and that she confirmed that she had been with the appellant who knew them while they did not know her. PW4 the father corroborated the aid evidence and stated that they got information from an informer on the whereabout of PW2 and on 4th December 2016 the appellants brother called and told him that he was with the complaint who was 14 by then and that he did not find the appellant with the compliant and neither were they found together by the police . 13.PW5 Rose Ngendo Waweru examined the complainant who had been reported to had run away from home and reportedly had unprotected sex with the boyfriend on 3rd December. On physical examination there were no injuries , the genitalia were normal but the hymen had an old tear which meant that she was sexually active. PW6 Paul Wasike linked up with the informer to arrest the appellant whom he knew as a boda boda rider and took him to Ruai police station and that he found him where he usually packs his bike and did not attempt to run away. 14.PW7 PC Prudence Maranga received a report on 4th December 2016 from the mother of the victim who had gone missing and eloped with the appellant and had unprotected sex with the same and referred them to the hospital where she was treated. She recorded the victim’s statement who admitted that she had eloped with the appellant. The appellant thereafter went underground until on 15th February 2017 when he was seen by an informer and was arrested. In cross examination she stated that the victim disappeared from the 1st to 4th of December 2016 but the family did not report her as missing. She confirmed that the father of the victim was a police officer who confirmed that he knew that the victim had a relationship with the appellant and that the case was only reported the day the victim reappeared. 15.When put on his defence the appellant denied defiling the victim and that he did not disappear. He stated that no witness testified that he had been seen with the minor and that the witnesses who allegedly linked him with the minor were not called. It was his evidence that the only prosecution witnesses were the complainant and her parents and that the compliant did not identify him upon arrest . Determination 16.In a case of this nature, the prosecution has a duty to prove three elements of the offence namely: the age of the victim, the act of penetration and the identity of the perpetrator. In this appeal , the age of the victim and the act of penetration were not disputed. The complainant was born on 2nd may 2002 and the act of penetration was proved through the medical reports and therefore find no fault with the trial courts finding thereon. 17.The only issue in dispute is whether the appellant was positively identified and whether the defence that he honestly believed that the victim was an adult was available to him. The only evidence that connect the appellant to the offence herein is her testimony to the fact that she had a relationship with the appellant which her father suspected so as a caring father he took away her phone so as to stop her from reaching out to the appellant. This did not succeed as on the material day she took her mother’s phone and called her boyfriend who picked her up and off they went. 18.The prosecution did not produce the call logs so as to corroborate this peace of evidence. It was also the prosecution case that during the three days she was away from home the appellant took her to several houses so as to aved the watchful eyes of her father but again as rightly pointed by the appellant , this evidence is purely hearsay as the said people were never called to corroborate the said evidence so as to fortify the prosecution case. 19.This to my mind was a case where the complainant’s father use (misused) his power and influence as a police officer to break the alleged relationship between his daughter and the appellant and from the evidence on record whereas the age of the appellant was not disclosed, though the trial court in the sentence order indicated that he was ten years older than the complainant, who to use the infamous words of Chitembwa J (as he then was) behaved as an adult. Not only did she refused to stop leading the appellant into temptation, she allegedly took the phone of her mother to call the appellant and to make plans for their meeting knowing very well that her father was looking for the appellant. 20.It is her evidence that when the appellant took her to his uncles home and found him in the house , they went for a walk until 11.00pm and sneaked back when the same was a sleep and that the following day she is the one who asked for help to get a place for them to spend the night and that is how Sammy came to their aid and in her word “ we had unprotected sex “ . 21.Even though this did not come out clearly in the evidence, her father PW4 stated that he had left the complainant at home with his granddaughter and the Nanny, the grand daughter who according to the appellants submissions turned out to be the complainant’s child, meaning that at class eight she already had a child 22.I am of the considered view and as pointed out by the appellant in his submission the defence under section 8(5) (a) and(b) that the that the appellant mistakenly believed that the complainant was of age , was available to the appellant who being un- represented was disadvantaged and therefore his conviction was not safe as this line of defence was not tested by the trial court and being a first appellate court, having re-evaluated the proceeding, would have considered the same had it been put forward. 23.There was further no evidence tendered before the court that the victims father knew the appellant as stated by the court since if that was the case then there would not have been the need to use san informer. The appellant conviction was based purely on suspension, that the father of the victim suspected that she was having a sexual relationship with the same and therefore if she was missing from the home then it logically followed that she was with the same , without removing the possibility of the victim being involved in affairs with others not before the court . 24.Whereas the accused as rightly pointed out by the court did not established that he was framed , the evidence on record pointed out that the complainant’s father took all the steps in stopping the ongoing sexual relationship between the appellant and the complainant and therefore it was for the prosecution and not the appellant to prove that there was no framing up of the appellant so as to remove him from the life of the minor who had tasted the forbidden fruit and went all the way to partake in the same as if the world was coming to an end. 25.I would therefore allow the appeal herein and set aside the conviction and quash the sentence herein. 26.I have said before and continue to say again, that unless the sexual offences act is re-looked at so as not to criminalize the consensual sexual relations between youths, our prisons will continue being filled by the boy child who in his innocent but mistaken belief, hold the view that there is nothing wrong in having sex and they continue to have it behind the scene and sometimes in the watchful eyes of the parents who like the father herein tried his best including assigning the police car to track down the appellant but the daughter was all happy to play Rambo. 27.As noted by the court at the point of sentencing , despite the fact that the appellant was in custody the victim was at that time a mother of two which the court without supporting evidence blamed upon the appellant who was ten years older that the complainant for having initiated her to sex at the tender age of 14 and had to drop out of school despite the fact that t she was coming from a well off family. 28.Parents must learn to understand their children who are now more exposed to the things of the world than they were and that even if they deny them the access to phones , they will still find a way out and therefore sex education is more than saying that I don’t want you to have a romantic relationship and parental love is more than providing things as can be seen from this case where the daughter of an influential police office fell into the arms of a boda boda rider ! 29.On sentence ,had I not allowed the appeal, I would not have interfered with the same as it belongs with the range provided for under section 8(3) of the Act even though the trial court took into considerations irrelevant matters in reaching the sentence herein. 30.In the final analysis I the appeal is allowed on both conviction and sentence which I hereby set aside and quash. The appellant shall be set free forthwith unless otherwise lawfully held. 31.The appellant and the boy child are put on notice that the mere fast that the girl is your girlfriend and is willing to have sex with you does, sexual offences Act is a strictly liability offence and therefore any girl whether has given birth and has a child as in the case herein below the age of eighteen is a no go area and the term sweet sixteen is an express avenue to prison DATED SIGNED AND DELIVERED 22ND DAY OF APRIL, 2026J WAKIAGAJUDGE