https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11303

Mburu v Republic (Criminal Appeal E098 of 2025) [2026] KEHC 11303 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEHC 11303 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E098 of 2025 JM Chigiti, J July 14, 2026 Between Paul Mungai Mburu Appellant and Republic Respondent Judgment 1.The appellant was charged with the offence of Defilement contrary to section 8(2) as read with (3) of the Sexual Offences Act No. 3 of 2006 in the main count. 2.The particulars are that on the 18th December 2023, at [Particulars Withheld] in Murang'a South Sub County within Murang'a County, the accused intentionally caused his penis to penetrate the vagina of R.W.M a child aged 6 years. 3.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 No. 3 of 2006. 4.The particulars are that on the 18th December 2023, at [Particulars Withheld] in Murang'a South Sub County within Murang'a County, the accused intentionally touched the vagina of N.W.N a child aged 6 years with his penis. 5.The appellant s case being dissatisfied with the conviction and sentence of the trial Court, he lodged an appeal which was later amended against the whole of the judgment, conviction, and sentence delivered on the 28th day of October, 2025. 6.The appeal is predicated on the following grounds;1.That, the learned trial Magistrate erred in law and in fact by violating the Appellant's right to a fair trial by failing to adequately inform him of his right to legal representation and by proceeding with the trial without facilitating such representation where the interests of justice so required, contrary to Articles 25(c) and 50(2)(b), (c), (g) and (h) of the Constitution of Kenya, 2010, thereby rendering the trial unconstitutional and a nullity.2.That, the learned trial Magistrate erred in law by imposing a sentence of life Imprisonment which is manifestly harsh, degrading, and indeterminate, and therefore unconstitutional and contrary to the Constitution of Kenya, 2010 and applicable international human rights instruments.3.That, the learned trial Magistrate erred in law and in fact by convicting and sentencing the Appellant for the offence of defilement despite the prosecution's failure to prove the essential ingredients of the offence, namely the age of the complainant and penetration, to the required legal standards. 7.He submits that he suffered prejudice because the trial court did not accord him the information that he was entitled to the right to legal representation. 8.It is his submission that owing to the nature of the office that he was faced with he was entitled to an advocate at the cost of the state. 9.He submits that the lapse and the failure of the trial Magistrate to give him that information amounted to a violation of his right to fair hearing Under Article 50 of the Constitution of Kenya. 10.On the second ground, he submits that the trial Magistrate erred by imposing a sentence of life imprisonment which is manifestly harsh, degrading, and indeterminate, and therefore unconstitutional and contrary to the Constitution of Kenya, 2010 and applicable international human rights instruments. 11.He submits that the trial court erred in the failure to find that the prosecution did not prove the essential ingredients of the offence, namely the age of the complainant and penetration, to the required legal standards. 12.The respondent opposed the appeal and argued that the judgment was legally sound. It argued that the age of the victim was established, the appellant was identified and that there was penetration. 13.Trial commenced and the prosecution called a total of six (6) witnesses in support of the said charges.At the close of the prosecution case, the court found that a prima facie case had been established and thus placed the appellant on his defence. 14.The appellant gave unsworn evidence and did not call any witness. 15.In the end, the court found that the main charge of defilement had been proved beyond reasonable doubt and sentenced the appellant to life imprisonment. 16.According to the Respondent the prosecution proved that the appellant defiled the victim. Analysis 17.The issue for determination is whether the appeal has merit. 18.The court is guided by the principles as enunciated in the case of Kiilu & Another v Republic [2005]1 KLR 174, where 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.” 19.During the trial, the prosecution was under a duty to prove beyond reasonable doubt the age of the victim, the identification of the assailant and the fact that there was penetration. 20.According to Section 2(1) of the Sexual Offences Act, 2006,"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 21.In the instant case, the victim and the doctor who examined her proved that there was penetration through the P3 and PRC forms. The doctor testified that the victim’s vagina had tears and that the victim’s hymen was broken. From this, the court is satisfied that the prosecution proved that there was penetration. 22.On the issue of identification, the victim testified that the appellant used to call him guka. He was a family member.The victim and the mother recognized him. This means that he was identified through recognition. 23.In the case of Reuben Taabu Anjononi and 2 others VS republic 1980 (eKLR) where it was held interlia that;“... 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". 24.The court in any event notes that the appellant did not advance any evidence to challenge his identification that would have helped the trial court to weigh it alongside the prosecution case. 25.The last ingredient of the offence of defilement is the age of the victim. 26.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. " 27.The court is satisfied that the age of the victim was proven beyond reasonable doubt through the child’s birth certificate that she was 5 years old at the time of the offence placing her under realm of The Sexual Offences Act 28.On another front, the appellant argues his right to fair hearing under Article 50 of The Constitution was taken away during the trial since the court failed to inform him of his right to legal counsel given the gravity of the offence he was charged with. 29.In Republic vs Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that;“In accordance with the language of the Constitution, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”. 30.In the present case, it is unclear from the record whether the trial court made the Appellant aware of these rights. 31.This issue was not addressed in the trial courtFrom the way the Appellant cross-examined the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution. 32.The right to counsel is not an automatic entitlement to persons charged with the offence of defilement. 33.In any event the appellant fails to demonstrate the prejudice that he suffered if any. 34.This ground lacks merit. The court did not fall into error when it convicted the appellant with the offence under Section 8 of The Sexual Offences Act. 35.On the issue of sentencing, the Law provides for a life imprisonment. 36.The same is legal and the court finds no error in the fact that the appellant was sentenced to life imprisonment. 37.The Court of Appeal, on its part, in Bernard Kimani Gacheru v Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” 38.The court is of the view that in exercise of its discretion, the trial court invoked Section 8 of the Sexual Offences Act in convicting the appellant. 39.I am convinced that the conviction and sentencing were legal and justified, and I see no reason to set them aside. Determination: 40.The appeal lacks merit.Order;The Appeal is dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 14TH DAY OF JULY 2026.……………………………………J. CHIGITI (SC)JUDGE