https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9389

JMM v Republic (Criminal Appeal E030 of 2025) [2026] KEHC 9389 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 9389 (KLR) Republic of Kenya In the High Court at Kerugoya Criminal Appeal E030 of 2025 EM Muriithi, J July 1, 2026 Between JMM Appellant and Republic Respondent (Ap appeal from the original conviction and sentence in criminal Case No. E022 of 2023 of the P.M. Magistrate’s Court at Gichugu on 19/3/2025 by Hon. M.N. Munyendo (PM)) Judgment Introduction 1.The Appellant was charged with and convicted of the offence of defilement contrary to Section 8(1) (2) of the Sexual Offence Act No.3 of 2006. The Particulars of the offence are that the accused on the 6th November, 2023 at [Particulars Withheld], Mbiiri sub location, in Kirinyaga County, unlawfully and intentionally caused his penis to penetrate into the anus of J.M.C a child aged 7 years. Upon full trial the trial court convicted the Appellant on 19th March, 2025 and on 13th March, 2025 sentenced him to life imprisonment. 2.Being dissatisfied with both the conviction and sentence the Appellant lodged this appeal on the grounds set out in the Petition of Appeal as follows:1.That the Honourable Learned Magistrate erred in law and fact in convicting the Appellant without sufficient evidence to prove the offence of defilement beyond reasonable doubt.2.That the Honourable Learned Magistrate erred in law and fact in failing to properly evaluate and analyze the evidence tendered by the defence, thereby arriving at an erroneous conclusion that the Appellant defiled the Complainant.3.That the Honourable Learned Magistrate erred in law and fact in failing to consider the Appellant’s defence.4.That the Honourable Learned Magistrate erred in law and fact in sentencing the Appellant to a life sentence which was disproportionate, harsh and excessive.5.That the Honourable Learned Magistrate erred in law and fact in failing to take into consideration the mitigating facts by the Appellant. The Prosecution’sCase 3.PW1 - JMC – a boy aged seven years then of [Particulars Withheld] Primary School grade 2, upon voire dire examination and the trial court finding him to be possessed of sufficient intelligence to justify his evidence being taken gave an unsworn statemnt sand said that said that he knew the accused person as Jack, and a relative of his grandmother. He detailed his encounter with Jack and on cross-examination responded, as follows:“PW1: Male-minor - Unsworn(States in Kiswahili)I am JMC. I am seven years old. I go to [Particulars Withheld] Primary School. I am in grade 2. I know the accused. He is called Jack. He is related to the lady standing outside. The lady outside is my grandmother.I remember that date. It was a Monday I was at home. My grandmother had left. She had gone to Mururi. I was left alone at home.Jack come he called me. He told me we go he buys me 'jubilee' at guka's shop. We went he bought it for me. He bought it for ten bob and gave me. We went to this house. It is not where we live it is far from our home. I know his home. I have been going to his home. We stayed outside then he pulled me we went inside the house. I had already eaten the jubilee. He told me to remove my clothes I was wearing a trouser I didn't remove it. When I refused to remove it, he removed it himself. Then he took me to the bed (child looking down to the floor). He lay on me. I was lying facing down. He was wearing clothes. He was wearing his work clothes. He opened the zipper his zipper (keeps glancing at the accused) He removed something I know what it is called. It is the part he was to urinate.What he did I don't know what is is called. I felt pain in the buttocks. That part I felt pain is the part I use to go for a long call. He put that part he uses to urinate inside that part I use to go for long call.I cried. No one heard because he covered my mouth with his hand. He did that for a while he covered my mouth for a while then he let me go I left and went home. I left him in his house I didn't tell anyone. I told my elder brother. He told my other brother.I am the one who told my dad. It is my sister who told me to tell my father. I told my father it is Jack who did that to me. Cucu is the one who told me to tell my dad. He came and I told him he said ok.He took me somewhere. He went and reported. I went to the police we were told to come back the next day. My dad bought me food.I went to hospital. I don't know the name. I was treated. The doctor gave me medicine. (Birth certificate copy marked MFI-1. P3 form marked MFI~2. PRC form marked MFI-3)Jack is here in that court. It is that one (nodding at the accused sited in dock. He didn't tell me anything when I left. He hadn't done that before. I tried to stop him but he didn't listen.Hon. L.W Kabaria - PM 13.3.2024 Cross-examinationNo, I didn't tell my father you were going to buy me a cake.You bought me the cake during the day.You said you will buy me cake because lgave you an egg.I was with you that time we usually eat food. Yes, that is the time you were going to work. ~You didn't tell me what work you were going to do.You didn't tell me you were going to pick coffee.Yes, my sister was at the place you were going to pick coffee. She went there at that time that we eat food (saa za kuku). She came back when it was almost night. No, she didn't tell me you were with her picking coffee.Hon. L.W Kabaria - PM 13.3.2024 Re-examinationThe accused didn't tell me he was going to pick coffee. I didn't know he was going to pick coffee. My sister is the one who told me she was going to pick coffee. She came back when it was almost night.Hon. L.W Kabaria - PM13:3.2024.” 4.PW1 was recalled almost seven months later for further corss-examination as follows:“PW1 (Recalled)Cross Examination By AccusedI didn't report immediately because my father was not at home. On that day I did not tell grandmother as there was nobody present at home. My grandmother too was not home on the material evening. During the act no oil or petroleum jelly was applied on me. That is all.Hon. M.N Munyendo - PM 9.10.2024 Re-examinationWhen grandmother came I told her. She was not home on material date. When father came I did tell him.Hon. M.N Munyendo - PM 9.10.2024.” 5.PW2 - Margaret Njeri Njoka, a clinical officer who works at Kianyaga Sub-County hospital who had 8 years’ experience after qualification from KMTC Murang’a had examined JMC on 9/11/2023 with a history of being sodomized by a person well known to him by the name Jack on 6th November, 2023 at about 1pm. She detailed her observations upon examination of the minor as follows:“On general examination the patient was in fair general condition he was calm not alcohol intoxicated. On physical examination the findings were normal. I gave the patient PEP. The immediate clinical result of the injury was harm. There were no injuries on the genitalia but there was a bruise on the anal region at six o'clock. There was no discharge on the anal region. The nature of offence was sodomy the child was eight years old. I concluded there was sodomy because there were bruises and when I sent him to the lab there were epithelial cells meaning there was penetration. The object used was blunt there was friction. I made an impression of sodomy. I wish to produce the PRC form and P3 form.(produced as P.Exh.2 and 3).”On cross-examination, the doctor confirmed that a DNA test was not conducted as the accused was not available. Further, the bruise had begun to heal it was approximately two days old. 6.PW3 - Peter Chomba Mwaniki, the father to the minor produced a birth certificate confirming that the his son was born on 11/2/2016. He testified that he had arrived home on 9/11/2023 at about 6pm when his son immediately informed him that he had been sodomized by the said his uncle Jack. PW3 went to look for the accused person who was his cousin but did not find him. He decided to report the matter to the police and was directed to take the child to Kianyaga sub-county hospital, which he did. He said that the doctor confirmed that his son had been sodomized. He said his son was treated and he received the P3 and PRC forms which were filled by the doctor and he took them to the police. 7.PW4 - PC Lillian Wathari, the investigating officer testified that the matter was reported by PW3 who was in the company of PW1 on 9/11/2023, and who alleged that the acussed defiled his son. He said that the child took 3 days before informing his father after he started diarrhoering. She also revealed that in the course of her investigations she recorded statements of witnesses and issued a P3 form which was filled. The accused was arrested at Mururi Shopping center and charged. She produced PW1’s birth certificate as an exhibit. On cross-examination, she stated that the child identified the accused as the perpetrator of the offence. The Defence Case 8.The Accused gave an unsworn statement in his defence that he worked at a hotel at Difathasand that on 8/11/2023 he was at his place of work at Difathas when he received a call from his uncle who alleged that he had defiled his son. He said he had left home on 18/10/2023 and did not return unitl he was called by his cousin. He further stated that on 9/11/2023 he went home, he met his uncle who was angry and informed him that he would report the matter to the police. He was later arrested and charged in court. He urged that nobody saw him commit the offence and that he had been framed for these charges. 9.DW2- Erick Munene Warugu, testified that on the material date 6/11/2023 he was with the accused in Difathas and that on 8/11/2023, the accused was called and informed that he was needed back home. The accused has left on the follwoing day 9/11/2023 and DW2 later learned that the accused had been arrested. On cross-examination he revealed that he worked together with the accused at a hotel in Difathas where the two used to split firewood and did not know about the allegations made by the child. He did not know that the child was related to the accused. Appellant submissions 10.The appellant urged that the Trial Court failed to warn itself of the dangers of relying on uncorroborated evidence; that the Medical evidence did not support the charge; and that the Medical evidence is crucial in sexual offence cases as it provided independent corroboration. In the instance case; The P3 Form PRC Form did not conclusively prove penetration. There were no injuries consistent with alleged force used; the examination was conducted after a significant delay weakening probative value. The medical findings were, therefore, inconsistent with the prosecution narrative, creating reasonable doubt. It was urged that the Trial Court failed to consider the Appellant’s defence, where in his unsworn defence in which he explained the circumstances leading to his arrest. The defence raised plausible and reasonable explanation that there not displaced by the prosecution. The trial court summarily dismissed the defence without proper analysis thereby violating the Appellant’s right to a fair trial. The Prosecution Witnesses contradicted each other on material aspects including: Who first reported the incident; The location of the alleged offence; The sequence of events. These contradictions were not minor but went to the root of the charge. 11.As regards sentence, it was submitted that the sentence imposed by the Trial Court was harsh, excessive and disproportionate. The Trial Court failed to consider; the appellant’s mitigation; whether this was a first offence and the circumstances of the offence. The appellant submits that even where a minimum sentence is prescribed the court retains discretion in appropriate cases especially where mitigation factors exists, citing Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR). 12.The Respondent did not file submissions Issue 13.The issue for determination is whether the trial court proved its case beyond reasonable doubt. Analysis 14.This being the first appellate court, it is enjoined to re-evaluate the evidence afresh, consider the arguments of both parties, and arrive at its own independent conclusions on the facts and law, while bearing in mind that the trial court had the advantage of observing the demeanour of witnesses. See Okeno v Republic [1972] EA 32. Ingredients of the offence 15.For a conviction on defilement under Section 8(1) of the Sexual Offences Act, the prosecution must prove beyond reasonable doubt:i.that the complainant was a child (under 18 years);ii.that there was an act of penetration; andiii.that the Appellant was the perpetrator.For a child aged 11 years or less, the mandatory sentence upon conviction is life imprisonment under Section 8(2) of the Sexual Offences Act.Evaluation of the prosecution evidence Age of the Complainant 16.PW3 (the father) testified that the child was born on 11.2.2016, making him approximately 7 years old at the time of the offence. The birth certificate was produced as an exhibit by PW4. This evidence was unchallenged. Age was proved. Penetration 17.PW1 (the 7-year-old victim) gave a clear, coherent account. He described being lured with a snack, taken to the Appellant’s house, having his clothes removed, being placed face down on the bed, and feeling the Appellant insert “the part he uses to urinate” into his anus (the part for “long call”), causing pain. He cried but was silenced with his mouth coverd. Medical evidence from PW2 (Clinical Officer) corroborated this: a bruise on the anal region at 6 o’clock position, epithelial cells on lab results confirming penetration, and a history consistent with sodomy two days prior. The P3 and PRC forms were produced. While the Appellant complains of delay in reporting and healing bruise, the child explained he reported after developing diarrhoea. Medical findings two days later remain probative. DNA is not mandatory in defilement cases; medical and victim testimony suffice when credible. Identification of the appellant 18.The victim knew the Appellant as “Jack,” a relative of his grandmother and his uncle (per PW4) and he had been to the house before. Identification was of a person well-known to the child, in broad daylight circumstances, with no suggestion of mistaken identity. The Appellant’s own evidence placed him in a family relationship with the child lending credence to the evidence of the minor as regards identifcation or recognition.. The evidence of PW1 was corroborated by PW2 (medical), PW3 (father’s testimony on report and hospital visit), and PW4 (investigating officer). Moreover, section 124 of the Evidence Act permits conviction on the uncorroborated testimony of a sexual offence victim if the court is satisfied the victim is truthful. In this case, statement of teh minor PW1 is corrroborated and there is no need to resort to section 124 of the Evidence Act. Defence Case and Alibi 19.The Appellant gave an unsworn statement claiming he was working in Difathas on the material date (having left home on 18/10/2023) and that he had been framed. DW2 (colleague) supported that they worked together and the Appellant left after a call on 9/11/2023. In Jacob Mutinda Kinyaika v Republic [2020] eKLR, the court held that failure to consider this defence amounts to an error in law. An Acccused need not prove an alibi defence but it may raise reasonable doubt as to the offence having been the perpetrator of the offence, as held by the Court of Appeal in Kiarie –v- Republic (1984) KLR:-“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 sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable….”However, the prosecution must disprove it. 20.In the present case, having regard to the Propsecution’s evidence, the alibi was that he was at work at Difathas an assertion supported by the evidence of DW2 who testified that “On 16.5.2023 we went to work with accused in Difathas.” He also said that “Jackson went home on the third say. He was Difathas for two days”, yet the appellant’s own unsworn defence stated that he had left home on 18/10/20223 and never returned until he was alleged called by the Cousin (PW3) on 8/11/2023. However, as the accused has no duty to prove his alibi, the Court accepts despite the incionsistences between accused and DW2, the alibi must be tested agaisnt the child’s identification evidence. This was a case of positive recognition of a known person; and DW2’s evidence did not indicate the times that the appellant was at their work station. The defilement could have happened at the time the appellant used to go to work as testified by the minor or 8:00am as stated by the father PW3, and the appellant would still be able to get to work and be with his colleague DW2 for the rest of the whole day. The reference to 1:00pm in the General medical history as recorded by PW2 in the Medical Examination P3 form is a statement of the 7 year child and it cannot be taken against him when that statement that child “alleges to have been sodomised by a person well known to him (Jack) on 6/11/2023 at around 1pm whereby the alleged person bought him a cake and took him to his house” is otherwise consistent in other repects with his testimony. The trial court properly considered and rejected the alibi defence. Sentence 21.The appellant’s counsel cited the High Court decision of Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR) where Odunga, J. (as he then was) held that mandatory minimum sentence in the Sexual offences Act were unconstitutional, in the words that “(a) to the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of Article 28 of the Constitution. However, the Court are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences. b) taking cue from the decision in Francis KariokoMuruatetu & Another vs. Republic [2017] eKLR(Muruatetu 1) those who were convicted of sexual offences and whose sentences were passed on the basis that the trial Courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.”. 22.The Supreme Court has since settled the question two decisions of 11/4/2025: in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) held that courts have no authority amend statutory provisions and the Court's role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication:“ 68.Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a court we have invoked this remedy in various instances; in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC 23 (KLR) Hon. Justice Kaplana Rawal, DCJ in her concurring opinion made recommendations to amend section 16 of the Supreme Court Act. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In National Bank of Kenya Limited v Anaj Warehousing Limited (Petition No 36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act. 69.We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.” 23.Similarly, in Republic v Ayako [2025] KESC 20 (KLR) the Spreme Court said:“ 45.In the Republic v Mwangi Case, this court held that, whilst sentencing is an exercise of judicial discretion, Parliament sets the parameters for sentencing for each crime in statute. We stated as follows:“66.We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed”. 46.In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on December 14, 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament. 47.In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.” 24.Section 8(2) of the Sexual Offences Act mandates life imprisonment for defilement of a child aged 11 or less. The victim was 7. The learned magistrate had no discretion to impose lesser sentence in view of section 8(2) of the Sexual Offences Act which gives a minimum sentence. While mitigation (first offender, etc.) was raised, the mandatory minimum prevails. Conclusion 25.Having re-evaluated the evidence, this Court finds that the prosecution proved its case beyond reasonable doubt. 26.The minor complainant (PW1) whose Age was proved by a birth certificate as seven (7) years and who the trial court in a voire dire found to be sufficiently intelligent to justify reception of his statement unsworn but subject ot cross-examination gave graphic detail of the act that cause pentration into his anus after he had been lured to the accused house by the accused, a relative who he identified as Jack, a relative of his grandmother and cousin to his father (PW3). The injuries on the child’s anus as confimred by the evidence of PW2 were constent with penetration. The appellant’s alibi defence put forth by appellant (DW1) and his work colleague (DW2) did not account for all the time material to the charge and could not raise a doubt against the consistent evidence of the prosecution presented by the minor victim, corroborated by the medical examination evidence of PW2 and consistency of the child’s report of the incident to the his brother, sister, and grandmother the latter two who told him to tell his father, which he did as testified by the father PW3 leading to the police report and action on the matter. 27.There was no question of identification of the assailant, the incident happening during the day during a long transaction of the minor with the appellant when the latter bought him a jubilee Cake and lured him the ot his house and outside which they sat as he finished his cake before the appellant pulled him into his house, where he had been going previously. It was a case of unmistakable recognition of the attacker. The Defence allegation of frame up was not based on any reasonable motivation on the part of the minor’s father and like the trial court, this Court is unable to see how it would have been posible toget a child of seven (7) years to lie against an adult and remain unshaken on cross-examination as PW1 did. The late official reporting of the incident – two days later on the 9/11/2023 to report the incident of 6/11/2023 - is explained by the minor’s own testitimony that he told his siblings and the grandmother who told him to tell his father who was away until then. The Court rejects the Appellant’s alibi defence and allegation of frame-up. 28.With respect, the Court does not find material inconsistencies as to the place where the incident and time of the incident, the PW1 stating that he was with the appellant at the time he ussually went to work and the father PW3 said the offence happened at 8:00am. PW3 on crossexamination said the the child did not report the case on the same day of incident as he PW3 was away at work, “when I came home it is when he reported to me. My mother did not report, she is not familiar with police and making reports.” 29.Consequently, the Court must find that the learned magistrate properly evaluated the evidence, considered the defence, and arrived at a correct conclusion. The sentence for defilement contrary to section 8(1) and (2) of the Sexual Offences Act is a mandatory sentence of imprisonment for life and, it is now settled since Manyeso and Ayako decisions of the Supreme Court, that the Court has no discretion to alter life sentence to an imprisonment term of years. The appeal from both conviction and sentence is declined. Orders 30.Accordingly, for the reasons set out above, the Court finds that the appeal against conviction and sentence lacks merit and it is dismissed.Order accordingly. DATED AND DELIVERED THIS 1ST DAY OF JULY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Mwangi for DPP.Mr. Ombachi for the Appellant.