https://new.kenyalaw.org/akn/ke/judgment/keca/2026/939

Alex alias Mzee Mkubwa v Republic (Criminal Appeal 98 of 2018) [2026] KECA 939 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KECA 939 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal 98 of 2018 P Nyamweya, LA Achode & JM Mativo, JJA May 8, 2026 Between David Otieno Alex alias Mzee Mkubwa Appellant and Republic Respondent (An appeal against the judgment, of the High Court of Kenya at Homa Bay (D. S Majanja J.) delivered on 3rd March 2016 in Kisumu HCCr. App No. 44 of 2015 from the original conviction in Homabay Chief Magistrate Criminal Case No. 1088 of 2014 Criminal Appeal 44 of 2015 ) Judgment 1.On 3rd March 2016, the High Court at Kisumu (D. S. Majanja J.) delivered a judgment in Kisumu HC Cr. App No. 44 of 2015 in which the conviction of David Otieno Alex alias Mzee Mkubwa (the appellant herein), for the offence of defilement was upheld. The particulars of the offence were that on 13th October 2014, at [Particulars Withheld] Koyoho sub location in Rangwe division within Homabay County, the appellant intentionally cause his genital organ, to penetrate the genital organ namely vagina of MA, a child aged 5 years. The High Court also upheld the sentence of life imprisonment which had been imposed by the trial Court (Hon. P. M. Gichohi CM- as she then was), after conduct of a trial in Homabay Chief Magistrate Criminal Case No. 1088 of 2014, in which four (4) prosecution witnesses testified, and in which the appellant gave sworn testimony in his defence and did not call any witnesses. 2.During the said trial, the victim (M.A.) testified as PW1 after a voir dire examination that one day she came from school and went to her grandmother’s, (D’s) house, who was not in, and she instead found a person called ‘Mzee” who was known to her. Mzee then he did tabia mbaya (“bad manners”) to her using his thing, (which the trial Court asked her to point, and she pointed to her private parts) after he removed his trouser and removed her pant. She further testified that she was in pain and cried, and went home but did not tell her mother. However, the following day when she went to school, she told her teacher, one Madam Irene, what the appellant had done and Madam Irene took her to hospital in Asumbi, where she was treated after telling the doctor what happened to her. 3.Irene Aluoch, a teacher at [Particulars Withheld] Primary School in Asumbi testified as PW 2 and confirmed that on 13th October 2014, she as on duty and at about 7.00 am, she went to teach 4-5 years old in middle class and among the children was PW 1, whom she found huddled in a corner. She called PW1, and noted that PW1 was not walking properly. On asking her why, PW1 stated that she was pricked by thorns but did not specify. P 2 then decided to take PW1 out of the class and after examining her, observed that PW1’s vagina and genital area was bruised and had some foul-smelling discharge. PW2 thereupon called Madam Eunice, a pre- unit teacher, who also examined the child. When they asked PW1 what happened she said someone did it to her but she did not know who it was. 4.After failing to get PW1’s mother, PW2 and the other teacher were assisted by a worker, one Ms. Nyambeki to take PW 1 to Asumbi Mission Hospital, where the doctor told them that he could not attend to the child in the absence of her parent and they had to return the child back to school. PW1’s mother later came to the school at about 1.00pm and PW 2 accompanied PW1 to the same hospital. After examining PW1 the doctor told them that PW1’s vagina had been penetrated, and when the doctor asked who had done it, PW 1 replied in a low voice that it was Mzee Kubwa. PW 2 further testified that they were all present when all the tests were done, but she later left PW 1 with her mother and was later shown the suspect at Rangwe Police station but she did not know him. 5.According to F.I. (PW3), PW 1’s mother, PW1 was born on 24th September 2008, and on 13th October 2014 she noticed PW 1 walking with a limp and when going to school and she was later called to go to school where she found Ms. Irene, the head teacher and school director, who told her that PW 1 had been defiled, and they had taken her to hospital and the doctor said he would only treat PW1 if her mother was present. She reiterated that they then took PW1 to Asumbi mission hospital, where the doctor examined her, and that when asked by the doctor what had happened, PW1 said Mzee Mkubwa did bad manners to her. PW1 was treated and given medication, and PW3 went to report the defilement at Rangwe police station and was referred to Homa Bay District Hospital where the doctor examined PW1 and filled the P3 form. 6.When PW 3 arrived home, the appellant called her to ask how PW 1 was and she told her that it was the devil who had deceived him, and asked PW 3 for forgiveness. PW3 asked him to come to her house and the following day called the police from Rangwe, who came and arrested him. PW3 used to see the appellant at her brother in law’s home where he did farm work and attended to cattle. 7.The doctor who examined PW1 on 15th October 2014 at Homa Bay District Hospital was Dr. Oduol Vincent (PW 4). PW 1 was brought to him by police officers from Rangwe police station and she was had difficulty walking. On examination, PW 4 found bruises bilaterally, on both sides of the labia majora and the hymen was broken. Additionally, investigations had already been done at Asumbi Mission Hospital and the vaginal swab and urine samples taken showed that the urine had white blood cells and the HIV test was negative. PW 1 was put on Post Exposure Prophylaxis to prevent her from contracting HIV and on antibiotics for any infections. PW 4 produced the PRC form and the P3 forms which he filled on 15th October 2014 using the treatment notes from Asumbi hospital and from Homa Bay hospital. 8.The offence was investigated by Sgt John Nganga (PW 5) who received the report of the defilement from PW3 on 14th October 2014, at Rangwe police station. PW3 came with, PW1, and she had treatment notes from Asumbi Mission Hospital, where the victim had been treated and referred to the police. She reported that PW1 had been defiled by a farm hand employed by her brother-in-law, and PW5 escorted PW 1 and PW 3 to Rangwe District Hospital in the company of PC (W) Anne Musyoki, they escorted PW 1 and PW 3 to Rangwe District Hospital and a doctor referred them to Homa Bay District Hospital. On 15th October 2014, he escorted PW3 and PW1 to the said hospital where PW 1 was examined by the doctor and P3 form filed. While at the hospital, PW 3 received a phone call from the appellant asking for forgiveness, and PW 5 advised PW 3 to let the appellant go to her house. The following day PW 3 reported that the appellant was on his way to her house, and PW 5 advised her to allow him in and lock him in the house and call PW5 form outside. Together with PC Anne, they boarded a motor cycle and went to the PW 3’s house and arrested the appellant. PW 1 and PW 3 also took them to PW 1’s grandmother’s house in the company of the appellant, and showed them the sofa set where the appellant had defiled PW1. The suspect was identified by PW1 and PW3 and they escorted him to Rangwe Police station and charged him with the offence. 9.In his defence, the appellant testified that he was a farmer, living in Rangwe before he was arrested. On 16th October 2014, he was going to tether the cows when one of them ran to PW 3’s compound. He followed it and saw teacher Irene whom he had met at PW 3’s home who greeted him and asked him to come and discuss the issue of an academic course he wanted to take in PW 3’s house. When he entered the house, PW2 received a call and left her in the house with PW3 who walked out and left him behind. He waited for PW 2 to come back but he realized the house was locked, and shortly thereafter he heard a motorcycle. When the door was opened, people who identified themselves as police officers entered and arrested him, took him to Rangwe police station and placed him in the cells. He was taken to Court the following morning and surprised when charges were read to him. The trial Court was satisfied that the prosecution had proved beyond any reasonable doubt that the appellant defiled the child and convicted him. During mitigation, the appellant stated that he was the only child of his family, and urged the Court to be lenient on him so that he can come out of prison and help his parents and go back to school. 10.Upon his first appeal to the High Court, D. S. Majanja J, found that the testimony of PW1 was clear and consistent as to the fact that she had sexual intercourse and her testimony remained unshaken even after cross- examination, and there was ample corroborative evidence. In addition, the complainant stated that she knew the appellant as Mzee and informed the doctor who treated her in presence of PW 2 and PW 3 that it is Mzee who had sexually assaulted her. Finally, as regards the age, PW3, testified that she was born on 24th August 2008, and for purposes of the sentence the age of the PW 1 was below the 11-year old bracket which attracts mandatory life sentence under section 8(2) of the Sexual Offences Act. 11.The appellant, being aggrieved by the findings of the High Court, proffered this appeal and raised six (6) grounds of appeal in his amended grounds of appeal, namely:1.The Hon. High Court Judge grossly erred in matters of law as the prosecution did not established a prima facie case but relied on circumstantial evidence contrary to Article 25 (c), 27 (1), 47 (1), 50 (1), 157 (11) and 159 (2) (e) of the Constitution of Kenya, 2010, Section 362 of the CPC and Section 107 of the Evidence act making the conviction unsafe.2.The Hon. High Court Judge erred in matters of law in not considering and addressing the prejudice caused to the Appellant in the High Court Contrary to Article 25 (c), 27 (1), 47 (1), 50 (1), 50 (4) 157 (11) and 159 (2) (e) of the Constitution of Kenya, 2010, Section 329 and 354 of the CPC .3.The Hon. High Court Judge erred in matters of law as the prosecution failed to prove the case against the Appellant contrary to Criminal Justice and the Evidence Act.4.The Hon. High Court Judge erred in matters of law as the Appellant challenged the veracity of the prosecution witness but the Hon. Judge did not address this issue , the detriment of the Appellant and against the tenet of a fair trial under Article 50 of the Constitution.5.The Appellant was arrested as a youth hence a mitigating factor.6.Mandatory sentences under the SOA No. 3 of 2006 violate in among others Article 25 (c), 27, 28, 47, 50 and 159 (2) (e) Constitution, 2010. 12.We heard the appeal on the Court’s virtual platform on 7th May 2025. The appellant, Mr. David Otieno was present appearing virtually from Naivasha Maximum prison and placed reliance on his written submissions dated 21st August 2025; while learned Principal Prosecution Counsel Ms. Kagali, appeared for the respondent and equally relied on written submissions dated 28th August 2025. This being a second appeal, our role as set out in section 361 of the Criminal Procedure Code and in the decision in Karani vs R (2010) 1 KLR 73 is to consider only matters of law. Accordingly, we cannot interfere with decision of the High Court on the facts unless it is demonstrated that the trial court and the first appellate Court considered matters they ought not to have considered, that they failed to consider matter they should have considered, or that looking at the evidence as a whole they were plainly wrong, in which case such omission or commission would be treated as a matter of law. 13.We have examined the appellant’s grounds of appeal and submissions, and note that the main point of law he raises was that that his case was not proved beyond reasonable doubt. The appellant in this respect, while citing various judicial authorities, submitted that the prosecution relied on circumstantial and hearsay evidence to his detriment; PWl, gave unsworn testimony; the P3 form was not credible and sufficient corroborating evidence under section 124 of the Evidence Act; the prosecution witnesses were unreliable and the High Court did not take into account their character evidence; he was maliciously framed in this case; the investigating officer did not investigate the case with due care and professionalism; appellant's defense was not taken seriously while he had exonerated himself from the alleged act, the trial was unfair and to his prejudice; mitigation had no place in the trial process because the sentence was said to be mandatory in nature, and the mandatory and indeterminate sentence of life imprisonment was unconstitutional. During the trial the appellant emphasised that he had served eleven years in prison which was enough punishment; he had gained skills while in prison; and requested to be given a second chance to assist his family and society. 14.Ms. Kagali on her part submitted that all the ingredients of defilement were proved beyond reasonable doubt and the prosecution did not rely on any circumstantial evidence in this matter. In particular, that the appellant has not cast any doubt as to the age of PW1 and the same was not contested; the penetration was proved by medical evidence and was corroborated by the evidence of the complainant and of PW2 and PW4 who examined PW1; PW1 positively identified the appellant, the trial Court and the High Court adhered to the relevant constitutional and statutory provisions and accorded the appellant a fair trial; the statements for all the witnesses were supplied before the hearing commenced; and in the event that there were any omissions they were curable under section 382 of the Criminal Procedure Code. On the mandatory sentence, the counsel cited the decisions of the Supreme Court in Republic v s Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) that found the mandatory sentences under the Sexual Offences Act to be constitutional and legal. In a nutshell, that a conviction under section 8(2) of the Sexual Offences Act carries a mandatory penalty of life imprisonment. 15.We have considered the appellant’s and respondent’s arguments. The elements of the offence of defilement that required to be proved were identified by this Court in John Mutua Munyoki vs Republic, [2017] eKLR as follows:“(i)The victim must be a minor, and(ii)There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice.” 16.In the present appeal, the age of the victim was proved by the production of a birth certificate that showed she was born on 24th September 2008 and therefore 6 years at the time of the alleged offence. This fact was not disputed by the appellant. We note in this respect that the appellant’s main argument as regards proof of the offence is that the witnesses who testified as regards penetration were not reliable, in particular that the complainant gave unsworn evidence, and that the medical evidence was not sufficient corroboration of their evidence. The general rule as regards the credibility of evidence adduced by a minor is that it requires corroboration, however, there is an exception in sexual offences, as noted by this Court in Sahali Omar vs Republic [2017] eKLR where it was held as follows as regards the requirement of corroboration under section 124 of the Evidence Act:“The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful.” 17.The law therefore is that where a minor is the victim of a sexual offence, the evidence of that minor, if believed by the trial court, can, without corroboration, find a conviction under section 124 of the Evidence Act. In the present appeal, the complainant (PW1), was a minor and her evidence, which was direct evidence and not circumstantial, was the primary evidence on the aspect of penetration and identification of the appellant as the perpetrator. The appellant has in this respect not pointed out any inconsistencies in the evidence of PW1, PW2 and PW3, any irregularities in the P3 form, to impeach their evidence and that of PW6. The trial Court and High Court found the evidence of PW1, PW2 and PW3 to be truthful, consistent and unshaken during cross-examination. In addition, the appellant did not specify the irregularities during the trial that rendered it unfair, and his defence was a bare denial, incapable of dislodging the evidence adduced as regards penetration or of his identification. The trial Court and first appellate Court therefore did not err in their analysis of the evidence and findings thereon. 18.Lastly, on the legality of the sentence of life imprisonment imposed on the appellant, it is notable that this ground was not raised as aground of appeal in the High Court. Nevertheless, the record shows that after his mitigation in the trial Court, in which he pleaded for a lenient sentence to be able to assist his parents and go back to school, the trial Magistrate held as follows in sentencing him:“I have considered the accused's mitigation and that he has been treated as a first offender I also consider the nature of the offence and the circumstances thereon. I now sentence him to life imprisonment as provided for by the law.” 19.Life imprisonment is provided for in section 8(2) of the Sexual Offences Act as the mandatory sentence for the offence of defilement of a child aged eleven years and less, and the said sentence was therefore not illegal. The Supreme Court of Kenya clarified in Francis Karioko Muruatetu & Another vs. Republic; Katiba Institute & 5 others Amicus Curiae) [2021] eKLR and reiterated in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (supra) that it did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute, and they remain constitutional. The Supreme Court further affirmed the validity of life imprisonment as a lawful punishment in Republic vs Manyeso [2025] KESC 16 (KLR), and held that setting the duration of a life sentence falls under legislative power, and courts cannot amend statutes to define it as a fixed term. We therefore have no basis to set aside or interfere with the sentence imposed on the appellant, and can only comment that he has to await a change in the law in this regard in his quest for release from prison. 20.For these reasons, we uphold both the conviction of the appellant for the offence of defilement contrary to section 8 (1) and (2) of the Sexual Offences Act, and the sentence of life imprisonment. This appeal is accordingly dismissed in its entirety. 21.Orders accordingly. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026P. NYAMWEYA…………………………………JUDGE OF APPEALL. ACHODE…………………………………JUDGE OF APPEALJ. MATIVO…………………………………JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR