https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10845

Mboya v Republic (Criminal Appeal E009 of 2025) [2026] KEHC 10845 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEHC 10845 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E009 of 2025 JM Chigiti, J July 14, 2026 Between John Wambua Mboya Appellant and Republic Respondent Judgment 1.The appellant was charged with the offence of defilement contrary to Section 8 (l) (3) at the Chief Magistrate's Court at Kandara in Sexual Offence Case Number E047 of 2022.The case proceeded into hearing after which the court convicted the appellant through the judgment dated and delivered on 30th December 2024 sentencing him to serve twenty (20) years imprisonment. 2.Being dissatisfied with the judgment ,he lodged an appeal against both conviction and sentence.That forms the subject of this judgment. The Appellant's Submissions; 3.He submits that having received and perused through the certified court proceedings, begs leave of this Honourable Court to amend and dispense with in totality his previously lodged Petition of Appeal under Section 350(2) (v) of the Criminal Procedure Code with the following grounds and proceed to argue then through written submissions:1.That the learned magistrate erred in law and fact by admitting and relying on the sworn evidence of PW 1 without conducting a proper voir dire examination capable of discerning her intelligence, understanding, and ability to give truthful testimony as required under Section 124 of the Evidence Act and long-established jurisprudence.2.That the learned magistrate erred in law and fact by relying on the uncorroborated, vague testimony of a minor whose evidence was materially inconsistent, without warning him as of the dangers of convicting on such evidence.3.That the magistrate erred in law and fact by placing undue weight to the Applicant 's alleged "failure to disprove" the prosecution's case, contrary to the principle that the prosecution has the entire burden of proof in a criminal trial.4.That the learned magistrate erred in law and fact by adopting PW 4's clinical evidence although she neither conducted the examination nor explanation of the chain of custody of the PRC and P3 forms, thereby admitting hearsay medical evidence contrary to Sections 33 and 77 of the Evidence Act.5.That the learned magistrate erred in law and fact by failing to reconcile the medical report showing "fresh hymenal tears" with evidence showing the child had been away from home for nearly a week and had allegedly had sex on multiple days, which is inconsistent with "fresh" hymenal injury.6.That the learned magistrate erred in law and fact by failing to adequately analyse the Appellant's defence that PW 1 came voluntarily after being chased from home, that he returned her, and that he was falsely implicated following a dispute over money.7.That the learned magistrate erred in law and fact by misdirecting himself that the Appellant "destroyed PW I's life" despite this conclusion not forming part of the evidence on record but instead relying on moral judgment and speculation.8.That the learned magistrate erred in law and fact by failing to consider the favourable pre-sentence report, the victim's own request for a non-custodial sentence, the Appellant's clean record, and exceptional personal circumstances, thereby imposing a harsh and disproportionate sentence. 4.He is asking the court to:a.Allow this appeal; andb.Quash the conviction of the Appellant for the offence of defilement contrary to Section 8 (3) of the Sexual Offences Act Number 3 of 2006; andc.Set aside the sentence of twenty (20) years imprisonment imposed by the Trial Court in Sexual Offence Case Number E047 of 2022 in the Chief Magistrate's Court at Kandara on the 30" December 2024 before Honourable R. N. Kimeu (RM); and/ord.In the alternative, should the conviction regrettably be upheld, to significantly reduce the sentence to a just and lenient term, taking into account the mitigating factors and the provisions of Section 333 (2) of the Criminal Procedure Code [which was not considered during the trial court's sentence]; and Make any other orders that this Honourable Court may deem just and expedient in the circumstances. 5.He filed submissions wherein he submits that the conviction that is based on the evidence of pw 1 is unsafe since the voir dire evidence showed that the child did not understand the value of the oath. 6.He relies on Section 124 of the Evidence Act stipulates that, "where the evidence of a child of tender years is admitted in accordance with section 19 of the Oaths and Statutory Declarations Act, and the child has given unsworn evidence, the court shall not convict the accused person unless the evidence is corroborated by some other material evidence in support thereof, implicating the accused." 7.The examination must determine two whether the child understands the nature and obligation of an oath, and if not, whether the child is possessed of sufficient intelligence to justify the reception of her evidence, and understands the duty of speaking the truth. 8.He submits that PW 1 testified that, ”I do not know what an oath is. I do not go to church. I am 13 years.” The Court then stated:“Unsworn statement; she does not understand the value of an oath.” 9.He submits that crucially, the court made no inquiry whatsoever into PW 1's intelligence (beyond noting her age and class), and her ability to understand and speak the truth rendering the entire voir dire fatally defective. 10.The admission of PW 1's unsworn testimony, which formed the foundation of the prosecution's case, was therefore a fundamental irregularity according to him. 11.The Appellant prays that this Honourable Court finds that the unsworn evidence of PW 1 was uncorroborated, materially inconsistent, and was relied upon without proper judicial caution, and the sentence imposed was founded on an illegal application of the law regarding the victim's age. 12.Wherefore, the Appellant prays that this Honourable Court allows the Appeal, quashes the conviction and sets aside the sentence imposed by the trial court. 13.On the issue Whether the learned magistrate erred in law and fact by placing undue weight on the Appellant's alleged "failure to disprove" the prosecution's case 14.He submits that the conviction of the Appellant is fundamentally flawed because the trial court misdirected itself on the burden of proof. 15.In the judgment he points out that the court recorded,"Having analysed the narrative offered or tendered by the accused person in his defence, I note and observe that that narrative did nothing to disprove the evidence laid by the prosecution on these three ingredients; age of the complainant, penetration and identification. " (Emphasis added). 16.The law is absolute that the burden of proving the Appellant's guilt rests solely with the prosecution from the beginning to the end of the trial. There is no legal burden on the Appellant to prove his innocence or to "disprove" the case against him. 17.He submits that by focusing on the Appellant's "failure to disprove," the trial court shifted the legal burden, thereby violating the Appellant's constitutional right to a fair trial and the presumption of innocence. 18.The trial court overlooked substantial issues in the prosecution's evidence that were sufficient to raise a reasonable doubt, regardless of the Appellant's defence narrative. 19.He submits that the court noted that PW 1 gave an unsworn statement as she "does not understand the value of an oath." While admissible, such evidence requires strong corroboration, which was not adequately assessed by the court when making its finding, and PW 1 claimed they stayed together until Sunday (6 days) and had sex on Monday and Tuesday, then "no sex" on Wednesday (refused). The medical evidence (PW 4) reported the minor explained the incident happened on 12th September, 2022 (a Monday) and that "the man forced her to have sex with her and there was vaginal penetration. " This narrative directly contradicts the notion that they were "boyfriend and girlfriend" who had sex "before" as PW 1 claimed. He submits that these material contradictions should have resulted in doubt. 20.The conviction is thus unsafe and should be quashed. 21.On The Medical Evidence he submits that PW 4, Nancy Ndwiga, explicitly stated that she did not examine the minor and that the PRC and P3 forms were filled by her colleague, Beatrice Martha, who was on transfer. 22.He submits that evidence of facts contained in a document made by a person who is not called as a witness is hearsay and generally inadmissible unless the maker is proved to be dead, cannot be found, is incapable of giving evidence, or is outside the jurisdiction and whose attendance cannot be procured without an amount of delay or expense which the court considers unreasonable (Section 33 of the Evidence Act). 23.Stating the colleague was "on transfer" is insufficient to satisfy the strict requirements of Section 33 of the Evidence Act and there was no demonstration that Beatrice Martha was "unavailable" in the sense required by law. 24.Consequently, PW 4's testimony relating to the findings and opinions in the PRC and P3 forms (Exhibits Pexh 3A and 3B) - such as the finding that the hymen was freshly broken and the opinion of vaginal penetration - was hearsay. 25.Section 77(1) of the Evidence Act allows for the production of a medical report without calling the maker, provided the report is signed by a medical practitioner and its maker is either dead or cannot be traced. 26.The maker of the report, Beatrice Martha, was merely "on transfer"not dead or untraceable. Therefore, the documents could only be proved by calling the PW 4 could only testify to the fact of receiving the documents and recognizing the signature, which does not amount to legally proving the contents of the report. 27.The court's finding on penetration was entirely based on this unproven and inadmissible documentary evidence. The trial court erred in accepting this evidence as proof of penetration. 28.PW 4, not being the examining clinical officer, also failed to explain the chain of custody of the biological samples or the integrity of the PRC and P3 forms from the time of examination (19/9/2022) to the time of production (30/11/2023).This omission further compromised the reliability and probative value of the exhibits. 29.The appellant submits that the prosecution failed to discharge its burden of proof on a critical ingredient of the offence and the conviction is therefore unsafe and cannot stand. 30.On another front he submits that the learned trial magistrate erred in law and in fact by failing to reconcile the medical evidence of "fresh hymenal tears" with the prosecution's own evidence, which demonstrated that the alleged sexual assault occurred over a period of six days, thereby rendering the finding of guilt unsafe. 31.The evidence of the complainant (PW 1) and the Investigating Officer (PW 3) was that the Appellant lived with the Complainant from 12 September 2022, to 18 September 2022 (a period of six days). The Complainant (PW 1) testified that the Appellant had sexual intercourse with her on Monday (12th September 2022) and Tuesday (13th September, 2022), stating: "He put his kitu ya kukojoa and put in my kitu ya kukojoa. Tuesday he also did the same. " This implies multiple acts of penetration over at least two days. 32.The Clinical Officer (PW 4) testified that the medical examination of the Complainant, conducted on 19 September 2022, confirmed a freshly broken hymen and bruises at the vaginal opening. PW 4 also produced the PRC form (PExh 3B) which documented these findings. 33.The medical finding of a "freshly broken hymen" and "fresh hymenal tears" (consistent with the medical report and P3/PRC forms) is medically and logically inconsistent with the Complainant's testimony of multiple penetrations. 34.He submits that the prosecution did not prove its case. The Respondents Case; 35.In opposing the appeal, the Respondent confirms that the appellant was charged with the offence of Incest contrary to section 20(1) of the Sexual Offence Act no. 3 of 2006. 36.The particulars of the offence are that on diverse dates between 12th September 2022 and 18th September 2022 at the rented house in Greystone trading centre in Ithanga-Kakuzi sub county within Murang'a county intentionally and unlawfully caused his penis to penetrate the vagina of J.N. a child aged 13 years. 37.In the alternative the appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offence act no. 3 of 2006, the on diverse dates between 12th September 2022 and 18th September 2022at the rented house in Greystone trading centre in Ithanga-Kakuzi sub county within Muranga county you intentionally and unlawfully touched breast of J.N. a child aged 13 years. 38.It submits that Section 8(1) as read with Section 8(3) provides that if a person who commits an act which causes penetration with a child is guilty of an offence termed as defilement. 39.A person who commits an offence of defilement with a child between the age of twelve years and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 40.According to the prosecution, The Pw1 testified that the victim was born on 28/12/2020.According to the mother Pw2 she was born in December 2010. 41.PW3 produced birth notification and age assessment report as exhibits which confirms that the victim was thirteen years. 42.On the issue of penetration, Section 2 of the SOA 2006 defines penetration as;-'penetration' means the partial or complete insertion of the genital organ of a person into the genital organ of another person.’ 43.Pw1 testified that they had sex with the appellant two times as he was her boyfriend. This was collaborated by evidence of PW4 who produced the treatment notes and p3 as an exhibit which showed that the there were bruises on the outside genitalia on the vaginal opening. 44.The prosecution proved the element of penetration beyond any reasonable doubt. 45.On the issue of Identification of reliance is placed in the case of Reuben Taabu Anjononi and 2 others VS republic 1980 (eKLr) it was held interlia;“... this was however a case of recognition not identification of the assailant; recognition of an assailant is more satisfying more assuring and more reliable than identification of a stranger because upon the personal identification of the assailant in one form or another". 46.The appellant was his boyfriend and she clearly saw her during the act as it was not the first time for them to have sex.He was positively identified. 47.The appellant’s defence was considered and a finding made that it was a sham and an afterthought was arrived at. 48.Section 8(1) as read with section 8(3) provides that if a person who commits an act which causes penetration with a child is guilty of an offence termed as defilement. A person who commits an offence of defilement with a child between the age of twelve years and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 49.The sentencing was within the Law. Analysis and Determination; The issue for determination is whether the appeal has merit. 50.This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions. 51.In the case of Okeno vs Republic [1972] EA 32 the Court of Appeal set out the duties of the appellate court as follows:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958] EA424.” This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174. 52.In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was held that: -“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 53.In determining the question of the age of the victim,the court is guided by the case of Alfayo Hombe Okello vs Republic where it was held that age is a crucial element in proving the offence of defilement. 54.In the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: -The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof". we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable. " 55.Pw1 testified that the victim was born on 28th December, 2020. According to the mother Pw2 she was born in December 2010.PW3 produced birth notification and age assessment report as exhibits which confirms that the victim was thirteen years. 56.The court is satisfied that the prosecution proved the age of the victim. 57.The court shall now address its mind to the issue of penetration. It defined under Section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organ of another person. 58.Pw1 testified that they had sex with the appellant two times as he was her boyfriend. This was collaborated by evidence of PW4 who produced the treatment notes and p3 as an exhibit which showed that there were bruises on the outside genitalia on the vaginal opening. The court is satisfied that the prosecution proved that there was penetration. 59.On the issue of identification of the appellant,this court notes that one of the appellant’s grounds of appeal is that the appellant wants the judgment and sentencing to be set aside since according to him the learned magistrate erred in law and fact by failing to adequately analyse the Appellant's defence that PW 1 came voluntarily after being chased from home, that he returned her, and that he was falsely implicated following a dispute over money. 60.This confirms to the court that it is the appellant was positively identified as the assailant. 61.In determining whether the trial court fell into error in relying on the uncorroborated, vague testimony of a minor this court invokes Section 124 of the Evidence Act, which provides that corroboration is not necessary in sexual offences. 62.Failure to conduct Voir dire hearing.The section provides as follows: -“Notwithstanding the provisions of section 19 of the oaths and statutory declaration Act, where the evidence of an alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence; the accused shall not be liable to be convicted on such evidence unless it is corroborated by other Material Evidence in support thereof implicating him provided that wherein a criminal case involving a Sexual Offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons to be recorded, in the proceedings, the court is satisfied that the alleged victim is telling the truth”. 63.The court finds that the trial court conducted voir dire within the requisite legal parameters. 64.The court does not find any proof that the prosecution Shifted the burden of proof to him. 65.The appellant raised a ground that the trial magistrate failed to consider the favourable pre-sentence report. In the Joshua Gichuki Mwangi v Republic , the Court was clear in its mind that the sentences prescribed under the Sexual Offences Act are not unconstitutional and can still be meted out in deserving cases. We therefore disabuse the notion that the sentences prescribed under the Sexual Offences Act are unconstitutional. The Court only held that when imposed merely because they are mandatory without considering the circumstances of the case, then just like in Muruatetu 1 they contravene the constitutional principles. 66.The following guidelines with regard to mitigating factors are applicable in a re-hearing sentence as per the Judiciary sentencing policy guidelines:a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence; (f) remorsefulness of the offender;f.The possibility of reform and social re-adaptation of the offender;g.Any other factor that the court considers relevant. 67.These guidelines in no way replace judicial discretion. They are also aimed at promoting public understanding of the sentencing process. 68.It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defence counsel to inform the court of existing guideline judgments on an issue before it. 69.It is my finding that the appellant has failed to demonstrate how the trial Court acted illegally in arriving at the impugned sentence. 70.The pre-sentencing report does not have binding effect on the court. 71.The trial court retains the discretion to arrive at the applicable sentencing so long as it is within the realm of Section 8 of The Sexual Offences Act. 72.It is my considered opinion that the sentence of twenty years was commensurate to the offence. 73.The conviction and sentencing are upheld. Determination; 74.The appeal is devoid of merit.Order;The appeal is dismissed. DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF JULY, 2026...................................................J. CHIGITI (SC)JUDGEIn the Presence of: