https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1355

Cyprian v Republic (Criminal Appeal E034 of 2021) [2026] KECA 1355 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1355 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal E034 of 2021 W Karanja, A Ali-Aroni & JM Ngugi, JJA July 10, 2026 Between Moses Mwenda Cyprian Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Chuka (Limo, J.) dated 29th April, 2020 in HCCRA No. 13 of 2019) Judgment 1.The appellant, Moses Mwenda Cyprian, was the accused person in the trial before the Senior Principal Magistrate’s Court at Marimanti, in Sexual Offence Case No. 12 of 2018. He was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The particulars of the offence were that on the 14th day of June, 2018, at Nkondi Location, Tharaka South Sub County within Tharaka Nithi County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of JG, a child aged 12 years. 2.The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the victim, date and place of the alternative count were the same as those in the main charge. 3.The appellant denied both the main and alternative counts, and the matter proceeded to full trial. At the conclusion of the trial, the learned trial magistrate convicted the appellant on the main count and sentenced him to twenty (20) years’ imprisonment, the mandatory minimum sentence provided under section 8(3) of the Sexual Offences Act. 4.Aggrieved by both conviction and sentence, the appellant appealed to the High Court at Chuka in Criminal Appeal No. 13 of 2019. In a judgment delivered on 29th April, 2020, the High Court (R.K. Limo, J.) dismissed the appeal in its entirety and upheld both conviction and sentence. 5.The appellant was again dissatisfied with the decision of the High Court and has lodged the present appeal. Acting pro se, he has raised eight (8) grounds in his Amended Grounds of Appeal, which are that the learned appellate Judge erred in law: as the prosecution evidence was not sufficient to stand conviction contrary to Articles 47(1), 50(1) and 159(2)(e) of the Constitution making the conviction unsafe; for failing to evaluate the entire evidence, law and facts contrary to sections 329 and 362 of the CPC making the conviction unsafe; for upholding medical evidence that was unreliable, doubtful and not credible contrary to Articles 47(1), 50(1) and 50(4) of the Constitution; and for relying on circumstantial and hearsay evidence. Also, that the lower court erred in matters of law and fact: by not considering that the prosecution witnesses were malicious, doubtful and not credible; by not considering the prejudice caused to the appellant contrary to Articles 25(c), 47(1), 50(1), 157(11) and 159(2)(e) of the Constitution and sections 329 and 354 of the CPC; for failing to put weight to the appellant’s mitigation and defense which was not rebutted by the prosecution contrary to Articles 25(c), 47(1), 50(1), 50(2)(k) and 159(2)(e) of the Constitution; and by awarding a sentence that was harsh, unfair and unconstitutional. 6.A summary of the evidence that emerged at the trial through five (5) prosecution witnesses, which was subjected to a fresh review and scrutiny by the High Court, is as follows;The complainant, JG, was at the material time a Class Two (2) pupil at [Particulars Withheld] Primary School. She testified as PW1 and gave unsworn evidence. She told the trial court that on 14th June, 2018, her school was hosting a music competition for which she required money. She, therefore, asked her brother, PW2, to accompany her home so t they could obtain the money from their mother. They proceeded to their mother’s place of work at [Particulars Withheld]’s farm, but did not find her there. Instead, they found the appellant, a colleague of their mother, who informed them that he would take them to her.The appellant then gave PW2 a mango and instructed him to return home. He thereafter left with PW1. 7.The appellant led PW1 away from her brother to a secluded spot near a mango tree where he restrained and sexually assaulted her. PW1 testified that she experienced severe pain during the ordeal but was unable to scream because the appellant restrained her and warned her not to disclose what had happened. After the incident, she went home and reported the matter to her mother. 8.The complainant’s brother, EM, a class four (4) pupil at [Particulars Withheld] Primary School at the time, testified as PW2. He stated that on the material day, he accompanied PW1 to their mother’s place of work so that she could obtain money needed at school. They found the appellant there. The appellant told them that he knew where their mother was and offered to take PW1 to her. He then gave PW2 a mango and instructed him to return home, while he remained behind with PW1. This evidence placed the appellant with PW1 immediately before the incident. 9.The complainant’s mother, TK, testified as PW4. She stated that on the material day, her children had gone to look for her at [Particulars Withheld]’s farm where she worked but did not find her. Later, when she returned home, PW1 informed her that the appellant had sexually assaulted her. PW4 examined PW1 and observed abnormal discharge. She promptly reported the matter to the sub- area chief, who referred them to Marimanti Police Station, from where they were referred to Marimanti District Hospital for examination and treatment. 10.PW4 produced PW1’s birth certificate as an exhibit. It showed that PW1 was born on 27th November, 2006. PW4 testified that the complainant was twelve (12) years old at the time of the incident. As we shall later observe, the birth certificate permits a more precise computation of the complainant’s age as at the date of the offence. 11.Bernard Mwenda, a clinical officer at Marimanti District Hospital, testified as PW3. He produced PW1’s P3 form on behalf of his colleague, Emilio Mwenda, who had examined PW1 and prepared the report. 12.The P3 form showed that the incident was reported on 14th June, 2018, the same day it occurred. It further recorded that PW1 reported having been assaulted earlier that day at about 10.00 a.m. by a person known to her. Upon examination, the clinical findings revealed injuries consistent with recent sexual assault. In particular, the complainant had bruising and tenderness on the vulva, the hymen was freshly torn, leading the clinician to conclude that there had been penetration. 13.PC Josphine Thuo, the investigating officer, testified as PW5. She stated that PW1 and PW4 reported the matter to Marimanti Police Station on 14th June, 2018 and identified the appellant as the assailant. She recorded their statements and facilitated the complainant’s medical examination, which confirmed sexual assault. Upon completion of investigations, the appellant was arrested and charged. 14.When placed on his defence, the appellant gave sworn evidence denying the charge. He stated that on the material day he was at his place of work and only learnt of the allegations later. He maintained that he had been falsely implicated and urged the court to acquit him. 15.Upon evaluating the evidence, the learned trial magistrate found that the prosecution had proved all the essential ingredients of the offence beyond reasonable doubt, namely the complainant’s age, penetration, and the identity of the appellant as the perpetrator. The trial court rejected the appellant’s defence as implausible and incapable of displacing the prosecution’s case. On first appeal, the High Court independently re-evaluated the evidence, arrived at the same conclusions, and upheld both conviction and sentence. 16.The appeal was argued by way of written submissions by both parties. During the virtual hearing, the appellant appeared in person, whereas learned prosecution counsel, Ms. Gacheru, appeared for the respondent. Both parties relied on their submissions. 17.As already stated, this being a second appeal, our role is a limited one. We do not re-try the case or substitute our own view of the facts merely because a different conclusion may be possible. We only interfere where it is shown that the courts below acted on no evidence, misapprehended the evidence, or applied wrong legal principles in arriving at their conclusions. See Karingo v Republic [1982] KLR 213, Karani v Republic [2010] 1 KLR 73 and David Njoroge Macharia v Republic [2011] eKLR. As this Court stated in Samuel Warui Karimi vs. Republic [2016] eKLR:“This is a second appeal and this Court has stated many times before, it will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings. See Chemangong -vs- R, [1984] KLR 611.” 18.In his written submissions and oral highlights, the appellant challenged both conviction and sentence. First, he submitted that the prosecution evidence was insufficient to sustain the conviction and argued that the learned Judge failed to properly re-evaluate the entire evidence, the applicable law, and the facts as required of a first appellate court. In particular, he attacked the reliability of PW1’s evidence, noting that she gave unsworn testimony as a child witness. 19.The appellant argued that the evidence of a child witness, especially one giving unsworn testimony, ought to be scrutinized with great care and, absent compelling reasons, ought to be corroborated. He relied on section 124 of the Evidence Act and faulted the learned Judge for failing to sufficiently warn himself of the dangers attendant to reliance on such evidence. He further contended that the evidence on record regarding age, penetration, and identification was contradictory and unreliable. 20.Second, the appellant submitted that the medical and oral evidence contained material inconsistencies which raised reasonable doubt. He argued that the prosecution relied on circumstantial and hearsay evidence, particularly pointing to aspects of PW2’s testimony. He further contended that no DNA analysis was conducted to scientifically connect him to the offence and that this omission left a significant evidentiary gap. According to him, nothing connected him to the offence beyond suspicion, which could not lawfully sustain a conviction. 21.Third, the appellant argued that his defence and mitigation were not properly considered by the two courts below. He maintained that, as a first offender, he ought to have been treated with greater leniency. On sentence, he submitted that the mandatory sentence deprived the trial court of sentencing discretion and resulted in a harsh and disproportionate punishment. He further urged that the period he spent in pre-trial custody ought to have been taken into account pursuant to section 333(2) of the Criminal Procedure Code. 22.The respondent opposed the appeal in its entirety. Learned prosecution counsel submitted that the prosecution proved all the essential ingredients of the offence beyond reasonable doubt, namely the complainant’s age, penetration, and the positive identification of the appellant as the perpetrator. On age, counsel pointed to the birth certificate produced by PW4, which showed the complainant’s date of birth as 27th November, 2006. 23.On identification, counsel submitted that this was a case of recognition rather than identification of a stranger. Both PW1 and PW2 knew the appellant beforehand as a colleague of PW4. Counsel argued that the evidence clearly established that the appellant misled PW1 and PW2 by falsely claiming to know where their mother was, used that deception to separate PW1 from her brother, and thereafter committed the offence. Counsel relied on Peter Musau Mwanzia v Republic [2008] eKLR for the proposition that recognition is generally more reliable than identification of a stranger. 24.Regarding penetration, counsel submitted that PW1’s testimony was consistent and was corroborated by the medical evidence adduced through PW3. The medical findings, including inflammation and other clinical indicators, were consistent with penetration and trauma. Counsel rejected the appellant’s arguments on hearsay, circumstantial evidence, and lack of DNA evidence, maintaining that the prosecution case rested on direct, credible, and corroborated evidence. Counsel emphasized that the appellant thoroughly cross-examined all the prosecution witnesses, yet their evidence remained consistent and credible. 25.On the appellant’s defence and sentence, counsel submitted that both courts below fully considered the appellant’s defence and rightly rejected it as a mere afterthought incapable of displacing the prosecution case. Regarding sentence, counsel argued that the sentence imposed was lawful and proportionate to the offence committed. Counsel further submitted that the trial court took into account the period spent in custody and urged us not to interfere with either conviction or sentence. 26.We have carefully considered the record of appeal, the rival submissions by the parties, and the judgments of the two courts below. As already noted, our mandate on a second appeal is limited to questions of law. The central question for our determination is whether there exists any legal basis for interfering with the concurrent findings on conviction and sentence made by the two courts below. 27.Although the appellant framed numerous grounds of appeal, a careful reading of his submissions reveals four broad complaints:first, that the prosecution failed to prove the charge beyond reasonable doubt; second, that the evidence relied upon was inconsistent, hearsay, and insufficiently corroborated; third, that his defence was not properly considered; and fourth, that the sentence imposed was harsh, unconstitutional, and excessive. 28.We propose to address the appeal in two broad limbs: first, whether the conviction was safe in law; and second, whether there exists any basis for interfering with the sentence imposed. 29.The first ingredient the prosecution was required to prove was the complainant’s age. Proof of age in sexual offence cases is important not merely for establishing that the complainant was a child, but also because age determines the applicable sentencing band under section 8 of the Sexual Offences Act. As this Court observed in Fappyton Mutuku Ngui v Republic [2014] eKLR and in Mwalongo Chichoro Mwanjembe v Republic, [2015] eKLR, age may be proved by documentary evidence such as a birth certificate; baptisimal or vaccination cards; by age assessment; or by credible parental testimony. 30.In the present case, PW4 produced the complainant’s birth certificate, which showed that PW1 was born on 27th November, 2006. That documentary evidence placed the complainant’s age beyond dispute. We are, therefore, satisfied, as were the two courts below, that the prosecution proved beyond reasonable doubt that PW1 was a child at the material time. We shall revert to the precise age disclosed by the birth certificate later when considering the appellant’s arguments on sentence. 31.The second ingredient the prosecution was required to prove was penetration. Under section 2 of the Sexual Offences Act, penetration means the partial or complete insertion of the genital organs of one person into the genital organs of another. The appellant argued that penetration was not proved because the medical and oral evidence was inconsistent and because no DNA analysis was conducted. We find no merit in that argument. PW1 gave direct evidence of what transpired and her account was materially corroborated by the medical evidence produced through PW3. The clinical findings revealed injuries and trauma consistent with recent sexual assault. There is no legal requirement that DNA evidence be presented in order to secure a conviction on a charge of defilement. This is because sexual offences may be proved by any admissible, cogent and credible evidence. In AML v Republic [2012] eKLR (Criminal Appeal No. 34 of 2010), this Court held that the fact of rape or defilement is not proved by way of a DNA test but by way of evidence. Further, section 36(1) of the Sexual Offences Act empowers a court to direct a person charged with an offence under the Act to provide samples for forensic testing, including DNA testing, for purposes of establishing linkage between the accused person and the offence. However, that provision is permissive rather than mandatory. We are, therefore satisfied, as were the two courts below, that penetration was proved beyond reasonable doubt. 32.The third ingredient was the identity of the perpetrator. The appellant contended that the prosecution case rested on circumstantial and hearsay evidence and that nothing directly connected him to the offence. We are unable to agree. This was not a case of identification of a stranger but one of recognition. Both PW1 and PW2 knew the appellant beforehand as a colleague of PW4. The evidence further established that the appellant personally interacted with PW1 and PW2 on the material day, misled them by falsely claiming to know where their mother was, and used that deception to separate PW1 from her brother. 33.In cases of recognition, courts have consistently held that the possibility of mistaken identity is significantly reduced because recognition is based on prior familiarity. See Peter Musau Mwanzia v Republic [2008] eKLR. In the present case, PW1’s evidence placed the appellant at the centre of the events, while PW2’s testimony materially corroborated the events immediately preceding the offence. We are, therefore, satisfied, as were the two courts below, that the appellant was positively identified as the perpetrator. 34.The appellant further attacked the conviction on the ground that PW1 gave unsworn testimony as a child witness and that her evidence required corroboration. He argued that the learned Judge failed to sufficiently warn himself of the dangers of relying on such evidence. We are not persuaded by that argument. The law on the evidence of child witnesses in sexual offence cases is now well settled by section 124 of the Evidence Act. The proviso to section 124 of the Evidence Act permits a court to convict on the sole evidence of the complainant in a sexual offence, even without corroboration, provided the court records its reasons for believing that the complainant is truthful. In the present case, both the trial court and the first appellate court expressly found PW1 to be a truthful and credible witness. In any event, PW1’s evidence was not uncorroborated. It was materially supported by the evidence of PW2, PW4, and the medical evidence produced through PW3. We, therefore, find no merit in the appellant’s complaint founded on section 124 of the Evidence Act. 35.We turn now to the complaint that the appellant’s defence was not considered. The record does not support that contention. Both the trial court and the High Court expressly considered the appellant’s defence, including his denial of the offence and his suggestion that he had been falsely implicated due to a grudge with PW4. Both courts rejected that defence as implausible and incapable of displacing the prosecution evidence. 36.We see no basis for interfering with that conclusion. The appellant did not raise the alleged grudge during cross-examination of PW4, and no credible evidential foundation was laid for the claim of fabrication. Having independently considered the record within the limits of our jurisdiction on second appeal, we are satisfied that the prosecution proved all the ingredients of the offence beyond reasonable doubt. The appellant’s conviction was, therefore, safe, and the appeal against conviction fails. 37.We now turn to sentence. The appellant urged us to interfere with the sentence on the grounds that it was harsh, excessive, unconstitutional, and inconsistent with the objectives of sentencing, particularly rehabilitation and proportionality. He further argued that the mandatory nature of the sentence deprived the trial court of the discretion to impose an individualized and proportionate sentence. 38.As already noted, severity of sentence is, by virtue of section 361(1)(a) of the Criminal Procedure Code, generally a matter of fact and, therefore, outside the scope of a second appeal. This Court will ordinarily only interfere where the sentence is illegal, where the sentencing court acted on wrong principles, or where the High Court enhanced sentence. See Karingo v Republic [1982] KLR 213.However, where the complaint concerns the constitutionality or legality of a sentence, that raises a question of law properly falling within our jurisdiction. 39.The appellant’s principal argument is that the mandatory sentence imposed under the Sexual Offences Act is unconstitutional because it deprives the trial court of sentencing discretion. That argument is foreclosed by binding Supreme Court authority. In Republic v Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR), the Supreme Court authoritatively held that the minimum sentences prescribed under the Sexual Offences Act are constitutional and that trial courts have no discretion to impose sentences below the statutory minimum. That decision, by virtue of Article 163(7) of the Constitution, binds this Court. 40.We note, however, that the complainant’s birth certificate showed that she was born on 27th November, 2006, while the offence occurred on 14th June, 2018. Strictly speaking, therefore, the complainant was approximately eleven years and six months old at the time of the offence, raising a question as to the precise sentencing bracket applicable under section 8 of the Sexual Offences Act. We say no more on that question because this is an appeal by the appellant alone, and no cross-appeal or notice seeking enhancement was filed by the respondent. In the circumstances, we see no basis, in the circumstances of this appeal, for interfering with the sentence imposed. 41.In the result, we find no merit in this appeal. We are satisfied that the conviction was safe, the appellant’s complaints regarding the evaluation of evidence are unpersuasive, and no legal basis has been established to warrant interference with the sentence imposed by the trial court and affirmed by the High Court. 42.Accordingly, the appeal against both conviction and sentence is hereby dismissed in its entirety save to clarify that the by dint of section 333(2) of the Criminal Procedure Code, the sentence shall be computed to run from 18th June, 2018 as that is the date when the appellant was first arraigned and he remained in custody during the pendency of his trial. 43.Orders accordingly. DATED AND DELIVERED AT NYERI THIS 10TH DAY OF JULY, 2026.W. KARANJA………………………JUDGE OF APPEALALI-ARONI…………………………JUDGE OF APPEALJOEL NGUGI…………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR