https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12044

Mati v Republic (Criminal Appeal E052 of 2025) [2026] KEHC 12044 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12044 (KLR) Republic of Kenya In the High Court at Embu Criminal Appeal E052 of 2025 RM Mwongo, J July 29, 2026 Between Salestino Mati Appellant and Republic Respondent (Appeal arising from the decision of Hon. S.K. Ngii in the Siakago MCSO No. E042 of 2024 delivered on 02nd April 2025) Judgment The Charge 1.The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act. Particulars are that on diverse dates and times between October 2023 and 06th November 2024 at [Particulars Withheld] village, Ishiara location in Mbeere North sub county within Embu County, the appellant, willfully and unlawfully caused his penis to penetrate the vagina of JNN a child aged 14 years. 2.He faced the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars are that on diverse dates and times between October 2023 and 06th November 2024 at [Particulars Withheld] village, Ishiara location in Mbeere North sub county within Embu County, the appellant intentionally caused his penis to touch the vagina of JNN a child aged 14 years. 3.The appellant pleaded ‘not guilty’ to the charge. After the full hearing, the trial court convicted him of defilement and sentenced him to 20 years imprisonment. The Petition of Appeal 4.Dissatisfied with the decision of the trial court, the appellant filed an amended petition of appeal dated 22nd September 2025 seeking that the conviction and sentence be set aside and the appellant be set free. The appeal is premised on the grounds that:1.The learned trial magistrate erred in law and fact by convicting the accused person based on contradictory evidence by the witnesses. A miscarriage of justice was thereby occasioned;2.The learned trial magistrate erred in law and fact by convicting the accused person by purely relying on the evidence of a juvenile which was not corroborated. A miscarriage of justice was thereby occasioned;3.The learned trial magistrate erred in law and fact by totally disregarding the evidence of the accused and his witnesses. A miscarriage of justice was thereby occasioned;4.The learned trial magistrate erred in law and fact by shifting the burden of proof to the accused which is contrary to law. A miscarriage of justice was thereby occasioned; and5.The learned trial magistrate erred in law and fact by disregarding the requirements of law of evidence and convicting the accused with based on insufficient evidence. Summary of the Evidence at the Trial Court 5.PW1 was William Gichova of Ishiara Level 4 Hospital who produced the P3 and PRC forms filled in by his colleague Catherine Wanjiru. Examination of the victim revealed that her hymen was broken and there were no other visible injuries. There were pus cells seen but no spermatozoa. Tests for HIV, STI and syphilis were negative. The victim was treated with antibiotics. 6.PW2 was the victim who stated that she was 14 years old at the time of the incident. She had been to the appellant’s home on several occasions before the day when she was caught with him. That the appellant had given her money on 2 occasions before they started meeting by the roadside to talk. She stated that on Sunday 31st November 2024, the appellant told her to visit him at his house and that she should carry her clothes. She did that and stayed at the home of the appellant for 3 days. During that time, the appellant was coercing her to have sex with him and she would agree. On the third day, her 2 brothers went to the appellant’s house where she was alone and they told her to return home and she did. 7.When the appellant learned that she had left, he looked for her and gave her a phone to use for communication. She lost the phone and the appellant confronted her brothers about that issue. It was her evidence that when she had gone to live at the appellant’s home, some neighbours alerted her mother. When she left the appellant’s home, she was taken to Ishiara Level 4 Hospital. On cross-examination, she denied that the appellant had left her in his house with one Njeru who defiled her. That it was her mother who reported the incident because she was angered by his actions and not because of money. 8.PW3 was the victim’s mother who testified that her daughter was 14 years old at the time of the incident. She produced her birth certificate indicating that she was born in 2010. She stated that on 03rd November 2024, she was away attending a social welfare meeting when she was informed that PW2 had left home. She returned and found the children who were left under PW2’s care had been abandoned at a neighbour’s home and she was not there. After she picked the children and returned home, she realized that PW2 had taken her clothes and left with them. 9.They started looking for her until the following day when the appellant asked her to charge his phone for him. She asked him whether he had seen PW2 but he said he had not seen her. Days later, one of PW2’s classmates told her that PW2 was hiding in the appellant’s home. She went there and confronted him over that issue but he did not say anything. She reported the matter to the Assistant Chief who advised her not to pick her child that night and that her would pick her the following day. The Assistant Chief failed to collect her and so she sent her son who went and brought PW2 back home with her clothes. 10.They reported the incident to the police then she took PW2 to the hospital. PW2 told her that the appellant had bought her silence with money. On cross-examination, she stated that PW2 was found with the appellant in his house. PW2 told her that the appellant had been sleeping with her. She stated that indeed there was the issue of a phone but the appellant refused to cooperate with them to resolve it. She denied the allegation that she had framed the appellant. 11.PW4 was the victim’s brother who stated that on the day his sister went missing, 03rd November 2023, he had left her at home leaving their younger siblings at their grandfather home. He called PW3 and told her that PW2 was nowhere to be found. He met the appellant and asked him if he had seen PW2 but he denied having seen her. On 05th November 2023, he saw PW2 outside the home of the appellant but he did not speak to her. One of their cousins also saw PW2 and she informed PW3. 12.PW4 thus went to the appellant’s home the next morning and found PW2 there with the house unlocked. She collected her belongings and they returned home. Later, PW4 recorded his statement with the police, who investigated the matter. On cross-examination, he stated that he had no way of knowing whether or not the appellant was sleeping with PW2. On the day he took PW2 home, he found her sleeping on a mattress in the appellant’s house. 13.PW5 was PW2’s grandfather. He stated that on the day when PW2 went missing, she had left her 2 young siblings with him, and it was on a Sunday. When PW4 returned home, he told him to go and look for her. PW4 asked the appellant if he had seen PW2 but he said he had not seen her. Later, some children saw PW2 at the home of the appellant. After PW2 was found, the appellant went to him claiming that PW2 had asked for his phone but it was now lost and he wanted it back. 14.According to PW5, the appellant later changed his mind and decided not to pursue the issue of the phone. PW2 disclosed that the appellant was giving her money so that she never tells anyone of their affair. On cross-examination, he stated that PW4 is the one who had taken PW2 out of the appellant’s house. It was suspected that the appellant was sleeping with PW2. 15.PW6 was PC Lucy Mugambi of Ishiara Police Station who stated that on 13th December 2024, the case was reported at the police station. PW2 was referred to the hospital for examination and treatment. She was informed that the appellant and PW2 used to have sexual intercourse at the home of the appellant, and she had been taken away from the appellant’s home by PW4. The relations between the appellant and PW2 started in 2023. She noted that the matter was reported more than 1 month after it had occurred. On cross-examination, she stated that she did not go to the appellant’s home but she relied on the statements made by the complainant and her witnesses and she stood by her testimony as the truth. 16.The appellant gave his defence as DW1. He denied the allegations made against him. He stated that the complainant’s mother is as good as his daughter and the victim as good as his granddaughter. That there was a land dispute between him and the complainant’s family which is the reason why they have implicated him. He stated that due to old age, he cannot involve himself in sexual activity since he cannot achieve an erection. That he is being harassed and framed because he was given authority to distribute the land and he sold some of his land, a fact that angered PW3. 17.In cross-examination, he stated that PW3 is jealous of him because she is widowed and he has a wife. He said that ordinarily, he spends the nights alone and he is 72 years old. That he does not engage in sexual activity with his wife, whose age he does not know. The court noted that the witness evaded the prosecution’s question regarding the case and whether the victim was found in his house. He accepted that he had given his phone to the victim. 18.DW2 was JM, the appellant’s wife. She stated that PW3 got into an affair with the appellant after she, PW3, lost her husband. At first, she, the witness, was not comfortable with the affair but eventually, she accepted. She said that the appellant was taking care of PW3’s children. The appellant refused to sell part of his land in order to pay school fees for PW3’s children and that is the reason why PW3 framed him. She stated during the time when the alleged incident occurred, she was at home throughout but she saw no such thing. 19.In cross-examination, she stated that the she shares a room with the appellant and that he does not have a separate room/house. She could not recall when the alleged incident occurred. She stated that the appellant was framed because he refused to sell his land to support PW3’s children. She said that on the material date, PW2 had been sent home from school for fees. She did not witness PW2 being collected from the appellant’s house. 20.DW3 was Pastor Ephantus Njeru. He stated that DW2 once asked for his assistance to resolve a dispute between herself, DW1 and PW3 who was allegedly cohabiting with DW1. He sat the three of them down for discussion and the appellant said that indeed he was having sexual relations with another woman and he was not planning to leave her under any circumstances. DW1 did not care what the effect of his actions would be on his wife. In cross-examination, he stated that this attempted reconciliation was done in 2019. He stated that he did not know anything about the present incident in the matter. 21.DW4 was Simon Mugo, the appellant’s son. He stated that he heard of the incident from PW2 and PW3. That the appellant related closely with PW3 and her siblings and at some point in time, he was cohabiting with PW3. He did not believe that the appellant did the acts he was accused of because the complainant was the daughter of PW3. In cross-examination, he stated that his parents sleep in the same room, and that the appellant does not have a separate house. According to him, PW3 influenced the case and framed the appellant. 22.DW5 was DG, a son of the appellant. He stated that the appellant was involved in an affair with PW3 despite opposition by the family. He was shocked to hear the claims that the appellant had defiled PW2. He said that the chief was not involved in the matter and it was reported after a very long time. He also stated that his parents share the same house. In cross-examination, he stated that he was at home in November and December 2024 and he never heard PW3 screaming at his father’s house. That the never saw PW4 picking PW2 from his father’s house. Parties’ Submissions on the appeal 23.In his submissions, the appellant faulted the court for relying on the testimony of the victim to reach a conviction, and that it paid no attention to the defense testimonies to the intent that the appellant was framed. He relied on the cases of David Jairo & Ann Achieng v Republic [2012] KEHC 1584 (KLR), Justus Aura Andanje v Republic [2008] KEHC 2237 (KLR) and JNM v Republic [2022] KEHC 11983 (KLR). He argued that the standard of proof had not been met in this case and so he ought to be acquitted. 24.In its submissions, the respondent relied on section 8(1) and (3) of the Sexual Offences Act, and the cases of NFN v Republic [2022] KEHC 11774 (KLR) and Munyathia v Republic [2025] KEHC 13989 (KLR) in which the court relied on George Opondo Olunga v Republic (2016) eKLR on the question of proof of age of the victim. The state argued that there was sufficient evidence to prove that the victim was a child at the time of the incident. 25.On the question of penetration, the respondent cited section 2 of the Sexual Offences Act and stated that the evidence of PW1 and PW2 was sufficient to prove that penetration occurred. It relied on the case of Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR) and argued that there was satisfactory evidence that the appellant was the victim’s assailant. Further reliance was placed on the case of Wilson Waitegei v Republic [2021] KEHC 1458 (KLR). It stated that in the circumstances, there is no basis to review the findings of trial court on conviction and sentence. Issues for Determination 26.The issues for determination are as follows:1.Whether or not the offence was proved beyond reasonable doubt; and2.Whether or not the sentence should be set aside. Analysis and Determination 27.This Court’s duty is to determine the appeal through reevaluation of the evidence adduced before the trial court. In the case of Kiilu & Another v. Republic [2005]1 KLR 174, the Court of Appeal stated thus:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 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 findings 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.” 28.As to whether the offence was proved beyond reasonable doubt, section 8(1) and (3) of the Sexual Offences Act provides:“(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” [Emphasis added] 29.Therefore, the elements of the offence may be broken down as follows:1.The age of the complainant- that the complainant was a child;2.That Penetration as defined under section 2(1) of the Sexual Offences Act occurred to the child;3.The perpetrator was positively identified. 30.PW2, the victim, stated that she was 14 years old at the time of the incident. PW3 the victims’ mother produced a birth certificate indicating that the child was aged 14 years at the time of the incident. The birth certificate constitutes proof of the child’s age. InFrancis Omuroni v Uganda [2000] EA 179, the court held thus, regarding proof of age of the victim:“I am of the considered view that the said information was filled upon interrogation on both the complainant and her guardian. I also had a chance to see complainant when she appeared before my court during trial. Based on the above-mentioned fact, physical appearance of the complainant and the response given in voire dire, I have no reason to doubt that the complainant was below 18 years. I make this consideration taking into consideration the above-mentioned case gives the authority to deduce the complainant’s age through observation and common sense.” 31.On whether there was penetration, the evidence is as follows. PW1 testified that when the victim was examined, it was observed that the hymen was missing which indicates penetration. However, there were no injuries around her genital area. The P3 form indicates that the victim was examined on 19th December 2024 more than 1 month after the alleged incident. (The alleged incident was reported on 18th December 2024). However, it was alleged that PW2 disappeared from home on 03rd November 2024 and she was found at the appellant’s home on 05th November 2024. In her testimony, PW2 stated that when she went to the home of the appellant, he coerced her into having sexual intercourse with him on several occasions. 32.During her testimony, PW2 identified the appellant in the dock as her assailant. He is also a person well known to her and her family. Additionally, this was clear from the defense case where DW2, DW3 and DW4 all stated that the families of the complainant and appellant were well known to each other. In fact, they stated that PW3 was cohabiting with the appellant for some time after her husband died. 33.Under section 124 of the Evidence Act, the testimony of PW2 is sufficient to identify her assailant without the need for corroboration. The provision is as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is 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 where in 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.” Emphasis added] 34.In its judgment, the learned trial Magistrate stated that he was satisfied that the complainant PW2 was truthful, and she did identify her assailant. The trial Court was guided by this provision of the Evidence Act. It is notable that in his defense, the appellant denied committing the offence and he stated that he has a wife but he lives in his own separate house most of the time. However, all the other witnesses supporting his case stated the contrary; that he lives with his wife, DW2, in the same house. They all said that they were at home on the day when PW2 was purportedly taken away from the appellant’s house and they observed no such thing. That notwithstanding, the complainant’s testimony is that the appellant told her to take her clothes and go to his house where she stayed for a few days, and she did. 35.It is also noted that the testimony of PW6 discloses that no investigation was done in this case. PW6 denied having visited the scene and stated that she built her findings from the witness statements collected. From her evidence, it is also unclear how she arrested the appellant or who identified him to her. 36.The matter was approved for prosecution by the ODPP without clarity on investigations which is a mandate it should exercise in any criminal matter. This is a gaping discrepancy in this case. Article 157(4) of the Constitution provides that:“The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.” 37.In this case, it is clear that no serious investigations were conducted by the police. They simply took the word of the complainants for the truth, and made no further efforts to avert injustice. When the appellant was arrested (in an undisclosed manner and by undisclosed persons) he was placed in police custody and was charged with the offence merely based on the word of the complainant and her family. Conclusions and Disposition 38.However, in spite of the inadequacy of investigation, the evidence adduced at trial proves beyond reasonable doubt all the elements of the offence of defilement as stipulated under section 8(1) of the Sexual Offences Act. Therefore, the conviction in this case was safe. 39.Following conviction, the appellant was sentenced to the mandatory minimum 20-year imprisonment sentence as prescribed under section 8(3) of the Sexual Offences Act, as follows:“(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” [Emphasis added] 40.The Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) rendered itself on the sentences prescribed under the Sexual Offences Act. It was held thus:“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.” 41.The Supreme Court reiterated its findings in that case through its recent decision in the cases of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) and Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR). It held that until Parliament reviews the sentences imposed in statute, the court has no mandate to review them. 42.In light of the foregoing, the trial court did not err in imposing this sentence since it is a mandatory minimum sentence and is a lawful sentence under the relevant law. 43.Given the foregoing discussion, the appeal hereby fails. The conviction and sentence are hereby upheld. 44.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 29TH DAY OF JULY, 2026.......................................R. MWONGOJUDGEDelivered in the presence of:Appellant Present in CourtNdana for AppellantMs. Mwaniki for the RespondentFrancis Munyao - Court Assistant