GMM v Republic (Criminal Appeal E016 of 2024) [2026] KECA 1032 (KLR) (29 May 2026) (Judgment)

GMM v Republic (Criminal Appeal E016 of 2024) [2026] KECA 1032 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1032 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E016 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between GMM Appellant and Republic Respondent (An appeal against both conviction and sentence from the judgment of the High Court of Kenya at Mombasa (Sewe, J.) delivered on 30th June, 2023inVoi Criminal Appeal No E036 of 2022) Judgment 1.The Appellant, Gift Mwanyalo Mwakitau, was charged before the Chief Magistrates’ Court at Voi in Sexual Offence Case No. E030 of 2021 with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on 28thNovember 2021, at about 1700 hours, at [Particulars Withheld] area within Voi Sub-County in Taita Taveta County, the Appellant intentionally and unlawfully caused his male genital organ, namely his penis, to penetrate the vagina of H.K. (the complainant), a girl aged five (5) years. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that, on the same date, time, and place, he intentionally and unlawfully touched the vagina of the complainant with his penis. 2.The Appellant pleaded not guilty and the matter proceeded to a hearing, during which the prosecution called four witnesses. At the close of the prosecution case, the Appellant elected to remain silent and await the judgment of the court. 3.The brief facts are that the complainant, PW1, a minor, testified that she lived with her grandmother, PW2, and that the Appellant was her uncle, though he did not live with them. On the material day, while she was playing outside with other children, the Appellant called her into the house, removed her clothes and his own, and hurt her genital area. Her grandmother caught the Appellant in the act of defiling her, at which point he stopped. She further stated that the incident occurred while her grandmother was attending a burial. 4.PW2, the complainant’s grandmother, and mother of the Appellant, returned home from a burial on 28th November 2021 at about 4:30 p.m. She found two children playing on a bed in the sitting room, and upon asking them where PW1 was, they informed her that the child was in the other room sleeping with the Appellant. PW2 entered the room and found the Appellant with his trousers pulled down. The complainant whilst crying was telling him that he was hurting her. PW2 checked the complainant and observed blood; that the Appellant had just started to defile the child when she arrived. PW2 closed the door and went to get help, but on returning, she found that the Appellant had escaped after cutting through the door with a panga. She reported the matter to the village elder, who informed the chief, and she was also advised to report to the police. The Appellant was later traced, beaten by members of the public, and arrested. 5.Dr. Njoto Nyawa, PW3, a medical officer at Moi County Referral Hospital, examined the complainant, who was aged 5 years, on 29th November 2021 following allegations of sexual assault that had occurred on 28th November 2021 at about 5:00 p.m. The complainant was found to be in fair general condition, her genitalia were inflamed with tender vaginal walls and a freshly broken hymen, though no abnormal discharge was observed. Laboratory findings showed numerous epithelial cells, with no spermatozoa detected. The doctor concluded that the findings were consistent with recent defilement. He produced the P3 and PRC forms, and treatment notes. 6.PC Veronicah Makhoha, PW4, the investigating officer from Voi Police Station, testified that, on 29th November 2021 at about noon, PW2 reported the incident at the police station accompanied by the complainant, a village elder and the Appellant. She recorded statements from the witnesses, interviewed the complainant, and produced the complainant’s birth certificate, which confirmed that the complainant was 5 years old. The Appellant was subsequently charged. 7.When placed on his defence, the Appellant stated that he would instead await the court’s judgment. 8.In its analysis, the trial court considered the essential ingredients of the offence of defilement, namely, proof of the age of the complainant, proof of penetration, and proof of the identity of the perpetrator. Consequently, the trial court found the Appellant guilty of the offence of defilement and convicted him accordingly. 9.Being dissatisfied with the decision of the trial court, the Appellant filed the appeal to the High Court on grounds that the learned trial Magistrate was in error in failing to properly evaluate and consider the entire evidence on record before arriving at the decision; in sentencing him to life imprisonment in circumstances where penetration, being a critical element of the offence, had not been proved beyond reasonable doubt; in convicting him without proof of an essential ingredient of the offence, namely positive identification, thereby rendering the conviction unsafe; and in failing to take into account his mitigation before imposing sentence. 10.Upon re-evaluating the entire record, the High Court as a first appellate court, found that the offence was proved and dismissed the conviction and upheld the sentence of life imprisonment.Aggrieved, the Appellant has filed an appeal to this Court on grounds that the first appellate court was in error in failing to find that there was gross violation of the Appellant’s rights as constitutionally provided, contrary to Article 25(2)(a), (b), and (h) of the Constitution, which had occasioned a miscarriage of justice; that, the sentence was harsh and manifestly excessive; in failing to find that the critical elements of defilement, namely age, penile penetration, and the identity of the alleged perpetrator, in light of conflicting evidence, were unproved, and that the medical evidence was at variance with the facts of the case; in failing take into account that a grudge existed between PW2 and the Appellant; that critical and essential witnesses were not availed notwithstanding the provisions of Section 143 of the Evidence Act, and that the record was replete with material contradictions and discrepancies capable of unsettling the verdict. 11.When the appeal came up for hearing on a virtual platform, the Appellant appeared in person while learned prosecution counsel Ms. Mburu appeared for the Respondent. In his written submissions, the Appellant submitted that his constitutional rights are grossly violated, thereby occasioning a miscarriage of justice, in that, his right to a fair trial, as guaranteed under Articles 25, 27 and 50 of the Constitution, was violated; and that both the trial court and the appellate court failed to safeguard these non-derogable rights. He further contended that the courts below did not properly re-evaluate and re-analyse the evidence as required by law, particularly in light of the contradictions and inconsistencies evident in the prosecution case. 12.The Appellant further submitted that the prosecution failed to prove the offence of defilement beyond reasonable doubt, as the critical elements of the offence—namely the age of the complainant, proof of penile penetration, and positive identification of the alleged perpetrator—were not satisfactorily established; that the evidence of the complainant and that of PW2 was contradictory, particularly on the issue of bleeding, and that the contradictions ought to be resolved in his favour. 13.He also submitted that the medical evidence was inconclusive, unreliable, and materially inconsistent with the facts of the case, and did not support the charge as framed; that further, the case against him was motivated by an existing grudge between himself and PW2, and that the prosecution failed to call critical and essential witnesses who were present at the scene. 14.On sentence, the appellant submitted that the sentence of life imprisonment imposed under Section 8(2) of the Sexual Offences Act is harsh, manifestly excessive, and unconstitutional, as it is imposed without due consideration of mitigation and is treated as mandatory. It was argued that mandatory and indeterminate sentences violate the rights to dignity and fair trial, and that the trial court failed to exercise sentencing discretion in accordance with constitutional principles and sentencing guidelines. 15.In their written submissions, learned prosecution counsel submitted that this being a second appeal, under Section 361(1) of the Criminal Procedure Code, this Court is confined to matters of law only, and the court should not interfere with concurrent findings of fact by the two lower courts unless it is shown that the findings were based on no evidence, or were based on a misapprehension of the evidence, or the courts acted on wrong principles. In support of this position, reliance was placed on the case of David Njoroge Macharia vs Republic [2011] KECA 406 (KLR) and Chemagong sv Republic [1984] KLR 213. 16.On whether the prosecution proved its case beyond reasonable doubt, it was submitted that the ingredients of the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the perpetrator; that the age of the complainant was proved through the birth certificate, penetration was proved through the complainant’s testimony and the medical evidence showing injuries and a freshly broken hymen, and identification was by recognition since the Appellant was the complainant’s uncle and was found with the complainant in the house. It was also submitted that the alleged existence of a grudge raised by the Appellant was an afterthought since it was not put to the witnesses in cross-examination. 17.On the alleged violation of the Appellant’s constitutional rights under Articles 25 and 50 of the Constitution, counsel submitted that the Appellant was informed of the charges in a language he understood, and of his right to legal representation, and was supplied with witness statements and documents in advance. On the issue of legal representation at State expense, reliance was placed on the case of Republic vs Chengo & 2 Others [2017] KESC 15 (KLR), where the Supreme Court held that the right to legal representation at State expense is not automatic and depends on factors such as the seriousness of the offence, severity of sentence, ability of the accused to pay for counsel, and complexity of the case. Counsel submitted that the High Court correctly found that the Appellant’s right to a fair trial was not violated. 18.On the sentence imposed, counsel submitted that the sentence of life imprisonment was lawful under Section 8(2) of the Sexual Offences Act and was therefore not harsh or excessive. Counsel relied on the case of Muruatetu & Another vs Republic; Katiba Institute & 4 Others (Amicus Curiae) [2021] KESC 31 (KLR), where the Supreme Court clarified that the decision did not invalidate mandatory or minimum sentences under the Sexual Offences Act; that therefore, the sentence was proper and should not be interfered with. 19.This being a second appeal, this Court is confined to matters of law only pursuant to Section 361(1) of the Criminal Procedure Code. This Court will not interfere with concurrent findings of fact by the two courts below unless it is shown that the findings were based on no evidence, or were based on a misapprehension of the evidence, or that the courts acted on wrong principles.Regarding a second appeal, this Court expressed itself in the case of Dzombo Mataza vs Republic [2014] eKLR thus:“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court...By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 20.Having considered the Record, grounds of appeal, and the parties’ submissions, we are of the view that the issues that arise for determination are:i.Whether the Appellant’s constitutional rights under Articles 25 and 50 of the Constitution were violated, thereby occasioning a miscarriage of justice.ii.Whether the prosecution proved the offence of defilement beyond reasonable doubt, particularly the elements of age, penetration, and identification.iii.Whether the prosecution case was marred by material contradictions, failure to call essential witnesses, and existence of a grudge.iv.Whether the sentence of life imprisonment was harsh, manifestly excessive, or imposed on wrong principles of law. 21.On the first issue, the Appellant contends that his right to a fair trial was violated, particularly the right to legal representation at State expense under Article 50 of the Constitution. Though the record shows that the issue did not arise in the courts below, and is being raised for the first time in this Court, we nevertheless consider it necessary to address the issue. 22.In the case of William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) vs. Republic [2022] KECA 23 (KLR) this Court underscored the scope of Article 50(2)(g) and (h) of the Constitution, and held that the operative circumstances for State-funded legal representation in criminal proceedings are where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. 23.In the instant case, the record shows that he actively participated in the trial and cross-examined the witnesses. There was nothing that showed that the Appellant suffered substantial injustice or that the case was complex or that he was inhibited in any way in the conduct of his defence. This ground therefore fails. 24.On the next issue of whether the prosecution proved the offence of defilement, the law is settled that the ingredients of the offence of defilement are proof of the age of the complainant, proof of penetration, and positive identification of the perpetrator. In the case of John Mutua Munyoki vs Republic [2017] eKLR, this Court stated:“Under the Sexual Offences Act, the main elements of the offence of defilement are as follows:i.The victim must be a minor, andii.there must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will sufficeiii.Proof of the identity of the perpetrator.”See also Muthama vs Republic (Criminal Appeal 3 of 2018) [2022] KECA 1214 (KLR). 25.The two courts below found that the age of the complainant was proved through the birth certificate. Penetration was proved through the complainant’s evidence, the eyewitness account of PW2 who caught the Appellant in the act, and the medical evidence which confirmed injuries consistent with penetration. On identification, the Appellant was positively identified by recognition as he was well known to both the complainant and PW2 and was caught in the act. See the dictum by this Court in the case of Shalen Shakimba Ole Betui & Shadrack Koitimet Ole Betui vs R, CR. A NO. 284 OF 2005:“The present was a case of recognition rather than identification and on our part, we have considered this issue and are satisfied that in view of the concurrent findings of the two courts below the appellants were positively identified, nay recognized by PW1 and PW2. There could be no possibility of a mistaken identify. We are satisfied that the appellants were convicted on very sound evidence of recognition in circumstances which were conducive to proper identification/recognition, Anjononi and Another v. R, [1980] KLR 54 at p. 60.” 26.Both the trial court and the High Court independently evaluated the evidence with respect to the complainant’s age, penetration and the Appellant’s identity, and concluded that the prosecution proved its case to the required standard. As there is nothing on the record that discloses that the courts below misapprehended the evidence, we have no basis upon which to interfere with the concurrent findings of fact. As such, just like the courts below, we are satisfied that the offence was proved and that the conviction was safe. This ground is without merit. 27.On the third issue, the Appellant alleged that there were material contradictions, that essential witnesses were not called, and that there existed a grudge between him and PW2. 28.In the case of Philip Nzaka Watu vs Republic [2016] eKLR, this Court held that:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the appellant person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 29.In the present case, the alleged discrepancies relate mainly to whether there was bleeding and whether the medical evidence supported the complainant’s testimony. The High Court, as the first appellate court, re- evaluated the evidence and found that penetration was proved through the complainant’s testimony, the evidence of PW2 who found the Appellant in the act, and the medical evidence which showed inflamed and tender vaginal walls and a freshly broken hymen, all of which injuries were consistent with recent penetration. In our view, the discrepancies and inconsistencies raised by the Appellant were not material, and did not go to the root of the prosecution’s case, and neither did they occasion any miscarriage of justice. The ground of appeal on contradictions therefore fails. 30.With regard to number of witness Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. 31.In the case of Joseph Kiptum Keter vs Republic [2007] eKLR, this Court observed that:“Bukenya v Uganda [1972] EA 549 clearly states that the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.” 32.In the present case, the prosecution called four witnesses, namely the complainant, PW2 who found the Appellant in the act, the doctor who produced the medical evidence, and the investigating officer who produced the birth certificate and other documentary evidence. The two courts below found, and rightly so, that the witness evidence sufficiently proved the essential ingredients of the offence. In the circumstances, the prosecution having proved its case, we are satisfied that it was not required to call a superfluity of witnesses, more so because, the Appellant did not identify any particular witness who was not called to testify. In effect, this ground fails. See Mwiti vs Republic (Criminal Appeal 88 of 2017) [2023] KECA 1042 (KLR). 33.On the existence of a grudge between himself and PW2, the record shows that the allegation of a grudge was not put to PW2 during cross-examination. And given that the Appellant elected to remain silent at the close of the prosecution case, and did not adduce any evidence pointing to the existence of an alleged grudge, as were the two courts below, we too, are satisfied that the allegation was unsubstantiated and was a mere afterthought. This ground is also without merit. 34.On the final issue of sentence, the Appellant contended that the sentence of life imprisonment was harsh and excessive and that the trial court treated the sentence as mandatory and, therefore, failed to properly exercise its discretion and consider mitigation. 35.In a second appeal such as this, this Court can only interfere with sentence if it is shown that the sentence was illegal, or that the court acted on wrong principles, or failed to consider relevant factors, or considered irrelevant factors, or that the sentence is manifestly excessive in the circumstances. 36.The Supreme Court, in the case of Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (2024) KESC 34 (KLR), affirmed the lawfulness of the sentences prescribed by the Sexual Offences Act. 37.The complainant in the instant case was a child aged 5 years, which falls within the category of offences punishable by life imprisonment under Section 8(1) as read with Section 8(2) of the Sexual Offence Act. Considering the complainant’s age and the circumstances of the offence, we find that the sentence imposed on the Appellant was both lawful and constitutional. This ground is without merit. 38.In sum, the appeal against the conviction and sentence lacks merit and is hereby dismissed in its entirety.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGORJUDGE OF APPEAL..................................DR. K. I. LAIBUTA CArb, FCIArb.JUDGE OF APPEAL..................................G. W. NGENYE-MACHARIAJUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR