Mugaru v Director of Public Prosecution (Criminal Appeal E028 of 2021) [2026] KEHC 10585 (KLR) (10 July 2026) (Judgment)

Mugaru v Director of Public Prosecution (Criminal Appeal E028 of 2021) [2026] KEHC 10585 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10585 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E028 of 2021 S Mbungi, J July 10, 2026 Between Bernard Waweru Mugaru Appellant and Director of Public Prosecution Respondent (Being an Appeal against the judgment of Hon. P.M Kiama(SPM) delivered on 16th November 2021 in Kangema SPM Court CASE No. SO 4 of 2019) Judgment 1.The appellant herein was charged with the offence of defilement contrary to section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between 1st November 2018 and 29th January 2019 at [Particulars Withheld], in Mathioya sub-county, within Murang’a County, the appellant intentionally caused his penis to penetrate the vagina of M.K.M alias M.N.M, a child aged ten years. 2.He 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 charge were that on diverse dates between 1st November 2018 and 29th January 2019 at [Particulars Withheld], in Mathioya sub-county, within Murang’a County, the appellant intentionally touched the vagina of M.K.M alias M.N.M a child aged 10 years with his penis. ­­­ 3.The Appellant pleaded not guilty to all the charges and the case then went to full trial and the prosecution called seven witnesses to prove their case. Facts at trial 4.PW1 was M.N.K, the complainant. After voire dire examination by the court, she testified under oath and stated that she was eleven years old at the time. She recalled that on 1st November 2018, while coming from the river, she met the accused who instructed her to get into his house which was made of metal/form sheet wall. That the accused made her sit on a chair and proceeded to take off his clothes, then told her to take off her clothes. She recalled that she was wearing a skirt and trouser, and she proceeded to remove her inner wear and trouser. That the accused then did ‘bad things’ to her and inserted his organ that he uses to urinate into her organ. She then wore her clothes and went home. She stated that during the act, she was standing while the accused was seated. That thereafter, the accused gave her Kshs. 20/- and told her not to show anyone. That she did not scream nor cry during the incident and walked back home. She did not tell her mother. 5.She recalled that later on in November, on another occasion while playing outside the accused’s house, the accused told her to visit his wife’s home. Upon entering, he closed the door with a nail, sat her on a sofa, took off his inner wear and trouser and took off her clothes too and did ‘bad things’ to her. That there was another girl named S on the seat. She stated that after the act she went to play outside. She stated that on the third time, she had a problem urinating while in class and her private parts were swollen. That the headteacher noted that she had occasional headaches, nose bleeding and her eyes were reddish. That she felt her hand was swollen as she wrote. She informed the Head Teacher and the chief of Waiganjo that she had been defiled. She was taken to Nyakianga Health Centre by Wambia, the assistant chief, where she was told she had a urine problem and her legs were swollen. Her urine could not flow down leading to swelling of her stomach, and when she went to defecate, the stool had small amounts of blood and she experienced a burning sensation. She later reported the matter at Kiria-ini police station and also identified the accused in court. 6.During cross-examination by Mr. Kagwi, counsel for the accused, PW1 stated that on the first occasion, she was alone when she entered the accused's house but that a girl named S was nearby and saw her inside the house with the accused but her mother told her to refrain from mentioning her in her statement at the police station. She maintained that she was defiled thrice by the accused. She stated that she was first treated at Gitugi Health Centre before being taken to Nyakianga Health Centre. 7.PW2 was John Wambia Maina, the Assistant Chief of Chui Sub-Location. He testified that on 29th January 2019 around 12.00 noon, he received a phone call from the head teacher of [Particulars Withheld] School, ­requesting him to go to his office. Upon arrival, they talked to PW1 who told them that on diverse dates in 2018, she was taken to a maize farm by the accused who defiled her and gave her Kshs. 20/= after the attack. He then took the girl to Nyakianga Police Station where the matter was reported, and thereafter took the child to Nyakianga Health Centre. The OCS Nyakianga Police Station called him and ordered him to arrest the accused. The following day, he went together with Cpl Murugi and arrested the accused, who was taken to Nyakianga Police Station. He stated that he knew the accused before since he hailed from his sub-location. 8.PW3 was ENW, PW1’s mother. She testified that PW1 was born on 15th October 2008 and produced a notification of birth. She stated that in January 2019, she was informed that PW1 was unwell and had difficulty urinating. The Assistant Chief later informed her that PW1 had reported being defiled by the appellant. PW3 testified that although PW1 had not initially disclosed the incident to her, she later admitted that the appellant had taken her to his house and defiled her on three occasions. PW3 identified the appellant in court and produced the P3 form and treatment card as exhibits. 9.During cross-examination, PW3 stated that she knew the appellant, who lived about four homesteads away, and that she did not know any other person called Bernard Waweru in the village. She confirmed that PW1 did not initially complain to her about the alleged defilement, but only said she was unwell on 29th January 2019 before going to school. PW3 later learnt that PW1 had fallen ill at school and that the assistant chief had taken her to hospital. She confirmed that she recorded a statement with the police and was present when the P3 form was filled. She maintained that PW1 told her she had been defiled in the appellant’s house and that when the appellant was arrested, she was at Nyakianga Hospital. 10.PW4 was Dickson Muriuki, the Head Teacher of [Particulars Withheld] School from Gitugi village. He testified that in 2019, he met PW1 who wanted to seek medication. Upon inquiry, PW1 told him she was feeling pain and wanted to go for a short call. Upon further examination, he was informed that PW1 had been sexually molested by a person known to her. He called the chief who came to the school for further investigation and went with the girl to the clinic for examination. The chief called him thereafter and informed him that the doctor had confirmed PW1 had been sexually assaulted. During cross-examination PW4 stated that he was not present when the girl was examined. That PW1 informed him that while on her way home, a neighbor accosted her, took her to the house and molested her. That he did not go with the chief to the health centre. 11.PW5 was No. 2017030090 PC Kevin Kemei from Mathioya, Gitugu Police Post. He testified that on 30th January 2019 around 5.30 p.m., he visited the home of the accused, in the company of his colleagues, following a report by PW3 that PW1 had been defiled by the accused. That they were directed to the accused’s house by the sub-chief. They arrested the accused and took him to Nyakianga Police Station. The accused was then charged with defilement. During cross-examination by Mr. Kagwi, PW5 stated that they did not find the complainant or her mother and were not with them during the arrest. 12.PW6 was No. 106372 PC Joyce Kerubo, the investigating officer from Nyakianga Police Station. She testified that on 29th January 2019 at around 5.00 p.m., the complainant, then aged ten years, went to the station in the company of PW2 and reported that she had been defiled by the appellant between November 2018 and January 2019, on three occasions. PW6 booked the report, and later recorded witness statements after the complainant was treated at Nyakianga Health Centre. She stated that the appellant was arrested on 30th January 2019 by PC Kelvin Mwangi and brought to the station, after which she prepared the file and caused him to be arraigned in court. 13.PW7 was Peter Mbogo, a clinical officer previously working at Nyakianga Health Centre. He testified that on 30th January 2019, he examined the complainant, who reported being defiled three times in December 2018 by a known person. He filled out the P3 form based on treatment notes dated 29th January 2019. Examination revealed normal external genitalia, but the hymen was broken and absent, indicating penetration by an object such as a penis. The complainant was treated for an infection; no spermatozoa were found. That marked the close of the prosecution case. 14.The trial court considered the evidence adduced and found that the prosecution had established a prima facie case against the accused and accordingly placed him on his defence. Defence Case 15.The accused gave unsworn testimony and stated that he did not know the victim. He stated that on 29th January 2019, he went to work, rested and went back home. They cooked food and slept. The following morning, police arrived at his home, arrested him and took him to Gitugi Police Post. He denied committing the offence. 16.Upon considering the evidence adduced and submissions filed by the parties, the trial court found the appellant guilty of the offence as charged, and sentenced him to life imprisonment. 17.Aggrieved by the decision of the trial court, the appellant lodged the present appeal vide a petition of appeal dated 25th November 2021, citing the following six grounds of appeal:a.The learned magistrate erred in law and in fact in finding that the prosecution had proved the charges brought against the appellant beyond any reasonable doubt.b.The learned magistrate erred in law and in fact in relaying on contradictory evidence adduced by the prosecution witnesses.c.The learned magistrate erred in law and in fact in making conclusions not supported by evidence.d.The learned magistrate erred in law and in fact in disregarding the defence of the appellant.e.The learned magistrate erred in law and in fact in not giving reasons for disregarding the defence of the appellant.f.The learned magistrate erred in law and in fact in not giving the appellant the benefit of doubt. 18.The parties agreed that the appeal be canvassed by way of written submissions. On record are submissions dated 5th June 2024, filed by the appellant and submissions dated 10th January 2025, filed by the respondent; both of which this court has carefully considered. Appellants’ Case. 19.Counsel for the appellant submitted that the evidence tendered by the prosecution before the trial court was marred by contradictions which ought to have been resolved in favor of the appellant. He averred that there were inconsistencies on the alleged scene of the offence, noting that whereas PW1 stated that the offence occurred in the appellant’s house and on a sofa set, PW2 stated that the minor reported that the offence occurred in a maize plantation, while PW3 stated that the minor informed her that she had been defiled in the appellant’s house. 20.The appellant further submitted that there were contradictions on whether the minor informed her mother of the alleged offence, how and by whom the appellant was arrested, how many times the minor was allegedly defiled, the dates of the alleged offence, and who reported the matter to the police. He also faulted the prosecution for failing to call one S, whom PW1 allegedly mentioned as having been present during one of the incidents. In his view, those contradictions created doubt as to the truthfulness of the prosecution witnesses and the reliability of the prosecution case. 21.The appellant also submitted that the learned trial magistrate made conclusions that were not supported by the evidence. He argued that PW1 did not expressly state that the appellant inserted his genital organ into her genital organ within the meaning of penetration under section 2 of the Sexual Offences Act. He further submitted that PW7, the clinical officer, did not make a finding that defilement had occurred and conceded that a broken hymen could be caused by factors other than sexual intercourse. The appellant therefore argued that the ingredients of defilement were not proved beyond reasonable doubt. 22.Lastly, the appellant submitted that his defence was not properly considered. He stated that he denied committing the offence, but the trial court dismissed his defence as a general denial without giving reasons. He urged the court to allow the appeal, quash the conviction and set aside the judgment of the trial court. Respondent’s Case. 23.In response to the appeal, the respondent submitted that the prosecution had proved its case against the appellant beyond reasonable doubt and that the conviction and sentence imposed by the trial court were sound and should be upheld. On the ingredient of age, the respondent submitted that the prosecution adduced sufficient evidence through PW3, the complainant's mother, who produced a Notification of Birth indicating that the complainant was born on 15th October 2008. The respondent argued that this documentary evidence conclusively proved that the complainant was ten years old at the time of the alleged offences, thereby bringing the case within the ambit of Section 8(2) of the Sexual Offences Act. 24.On penetration, the respondent submitted that the complainant gave a clear and detailed account of how the appellant inserted his genital organ into hers. The respondent further submitted that this testimony was corroborated by the medical evidence adduced through PW7, the clinical officer, who confirmed that the complainant's hymen was broken and absent, which was abnormal for a child of her age, and that she had an infection. 25.On identification, the respondent submitted that the appellant was positively identified by the complainant as a neighbor known to her, and the incidents occurred during the day on multiple occasions, leaving no doubt that he was the perpetrator. 26.Regarding the alleged contradictions, the respondent submitted that the same were minor, immaterial, and did not go to the root of the prosecution's case. The respondent relied on the Court of Appeal decision in Philip Nzaka Watu v Republic [2016] KECA 696 (KLR) for the proposition that human recollection is not infallible and minor discrepancies do not necessarily destroy the credibility of witnesses. 27.Regarding the appellant's defence, the respondent submitted that the trial court properly considered and dismissed the appellant's unsworn evidence, and that the life imprisonment sentence imposed was lawful under Section 8(2) of the Sexual Offences Act and appropriate given the gravity of the offence. Analysis and Determination. 28.This being the first appellate court, it is guided by principles set out by the court of appeal in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the court stated as follows:“The duty of the first appellate court is to analyze 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.” 29.I have looked at the grounds of appeal, the submissions filed by the parties, the lower court proceedings and the trial court’s judgment. 30.I isolate the following issues for determination:i.Whether the prosecution proved the charge of defilement against the appellant beyond reasonable doubtii.Whether the trial court erred by relying on contradictory evidenceiii.Whether the trial court properly considered the appellant’s defenceiv.Whether the sentence imposed was lawful. Issue I: Whether the prosecution proved the charge of defilement against the appellant beyond reasonable doubt 31.The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. In a charge of defilement, the prosecution is required to prove three essential ingredients, namely: the age of the complainant, penetration, and the positive identification or recognition of the accused person as the perpetrator. (See Wandera v Republic (supra) and AMN v Republic (Criminal Appeal E066 of 2022) [2024) KEHC 1219 (KLR). 32.On the age of the complainant, PW1 testified that she was eleven years old when she testified. PW3, the complainant's mother, testified that the complainant was born on 15th October 2008 and produced the notification of birth. The particulars of the charge stated that the offence was committed on diverse dates between 1st November 2018 and 29th January 2019. From the date of birth given by PW3, the complainant was about ten years at the material time, thereby placing her within the age bracket contemplated under section 8(2) of the Sexual Offences Act. 33.On penetration, PW1 testified that the appellant took her into his house, removed his clothes, asked her to remove her clothes and thereafter inserted ‘the organ he uses for urinating into her organ’. She further testified that the appellant did the same "bad things" to her on more than one occasion. Although PW1 used childlike language, her description was clear and direct. Under section 2 of the Sexual Offences Act, penetration means the partial or complete insertion of the genital organ of a person into the genital organ of another person. 34.I have also considered the medical aspect of the evidence. PW1 testified that she had pain while urinating, her private parts were swollen and she was taken for treatment. PW7 testified that the complainant had difficulty urinating and was examined at Nyakianga Health Centre. PW4 testified that the complainant reported pain and that the matter was referred for further action. The medical documents were referred to in the proceedings. However, even without placing undue reliance on the medical documents, the evidence of PW1 on the act of penetration was cogent and remained firm under cross-examination. 35.In sexual offences, medical evidence, though vital, is not the only mode of proving penetration. In David Kimani Kimaita v Republic [2021] KEH 7673 (KLR), the court reiterated that medical evidence linking an accused person to the offence is welcome, but it is not mandatory or the only evidence upon which an accused person may be convicted for a sexual offence. The court may convict where, on the evidence before it, it is satisfied beyond reasonable doubt that the offence was committed by the accused person. 36.Further, the proviso to section 124 of the Evidence Act permits a court to convict only on the evidence of the complainant in a sexual offence if, for reasons recorded, the court is satisfied that the complainant is telling the truth. This position was recently restated in SBNM v Republic (Criminal Appeal E104 of 2023) [2025] KEH 1783 (KLR) where the court stated thus:“The Court of Appeal had occasion to consider that section in the case of George Kioji Vs. Republic Criminal Appeal No. 270 of 2012 where the Court expressed itself as follows on proof of commission of a sexual offence:-“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can be convictedfor defilement. The court can convict if it is satisfied that there is evidence beyond any reasonable doubts that the defilement was perpetrated by the accused person. In deed under the proviso to section 124 of the Evidence Act Cap 80 laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone if the court believes the victim and records the reason for that belief,” 37.In the present case, the trial court conducted voire dire examination on PW1, and after being satisfied that she was fit and intelligent enough to tell the truth, 38.PW1 gave a consistent account of the incident, maintained her evidence under cross-examination and identified the appellant as the person who defiled her. I find her evidence credible. On identification, this was not a case of identification of a stranger. PW1 knew the appellant. PW2, the Assistant Chief, testified that he knew the appellant because he came from his sub-location. PW3 also testified that she knew the appellant and did not know any other Waweru in that village. PW1 identified the appellant in court as the person who defiled her. I am therefore satisfied that the appellant was positively recognized. Recognition is generally more reliable than identification of a stranger because it Is based on prior knowledge of the person identified. In the present case, the evidence of PW1 was supported by the evidence of PW2 and PW3 that the appellant was a person known within the locality, I find no possibility of mistaken identity. 39.Having considered the evidence on age, penetration and identification, I find that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt. The first ground of appeal therefore fails. Issue II: Whether the trial court erred by relying on contradictory evidence 40.The appellant contended that the prosecution's case was fatally flawed by material contradictions. He pointed to inconsistencies regarding the scene of the offence, noting that while PW1 testified that the defilement occurred in the appellant's house on a sofa set, PW2 stated that the minor reported being taken to a maize plantation, while PW3 maintained that the minor informed her that the acts occurred in the appellant's house. The appellant further submitted that there were contradictions on whether the minor informed her mother of the alleged offence, how and by whom the appellant was arrested, how many times the minor was defiled, the dates of the alleged offence, and who reported the matter to the police. He also faulted the prosecution for failing to call S, whom PW1 mentioned as having been present during one of the incidents. 41.In response, the respondent submitted that the alleged contradictions were immaterial, and did not go to the root of the prosecution's case. The respondent argued that the complainant was consistent on the core facts: that she was defiled by the appellant on multiple occasions, that she was ten years old, and that she positively identified the appellant as the perpetrator. The respondent cited Philip Nzaka Watu v Republic [2016] KECA 696 (KLR) for the proposition that human recollection is not infallible and minor discrepancies do not necessarily destroy the credibility of witnesses. 42.The law is that not every inconsistency or discrepancy in the prosecution's evidence is fatal to a conviction. Only contradictions that go to the root of the prosecution case and create reasonable doubt in the mind of the court can vitiate a conviction. In Ochieng v Republic (Criminal Appeal 136 of 2019) (2024) KECA 1822 (KLR), the Court of Appeal held that discrepancies which are not on material particulars and do not weaken the prosecution case are not fatal. I therefore find that the trial court did not err in relying on the prosecution evidence and thus this ground of appeal fails. 43.The third ground of appeal was that the learned trial magistrate made conclusions not supported by evidence. Upon re-evaluating the record, I find that the trial court's conclusions were supported by the evidence on record. The conclusion that the complainant was a child was supported by the evidence of PW3 on her date of birth. The conclusion that penetration occurred was supported by the evidence of PW1. The conclusion that the appellant was the perpetrator was supported by the direct evidence of PW1 and the evidence of PW2 and PWS that the appellant was known to the complainant and her family. 44.The court must consider the totality of the evidence and not isolate minor portions of the testimony in a manner that distorts the substance of the prosecution case. Having considered the record as a whole, I find no merit in the argument that the trial court's findings were unsupported by evidence. The third ground of appeal therefore fails Issue III: Whether the trial court properly considered the appellant’s defence 45.The appellant faulted the trial court for disregarding his defence and for failing to give reasons for doing so. The record shows that the appellant gave an unsworn statement. He stated that he was a farmer from Gitugi, that he did not know the complainant, that on 29th January 2019 he went to work, returned home, cooked food and slept, and that the following morning police officers went to his home and arrested him. He denied committing the offence. 46.The trial court in its judgment, stated thus:“In his defence, the accused only narrated how police visited him and was arrested……………. As stated here above, the accused did not offer any evidence to rebut that of the prosecution but gave a general denial which could not stand in the face of the prosecution’s evidence on record.” 47.Although the trial court ought to have expressly analyzed the appellant's defence in more detail, the brevity of that analysis, is not, by itself, a basis for allowing the appeal, particularly where the first appellate court has reconsidered the defence. The appellant's defence did not displace the evidence of PW1 that the appellant was known to her and that he defiled her on more than one occasion, it also did not displace the evidence of PW2 and PW3 that the appellant was known within the locality as ‘Waweru’. Further, the charge was not limited to 29th January 2019. It related to diverse dates between 1st November 2018 and 29th January 2019. The appellant's statement on what he allegedly did on 29th January 2019 did not answer the complainant's evidence that the acts occurred more than once during the period covered by the charge. 48.I am alive to the principle that an accused person has no burden to prove his innocence. The burden of proof remains throughout on the prosecution. The question for this court is whether, after considering the defence together with the entire prosecution evidence, any reasonable doubt was created, in my view, the appellant's defence did not create such doubt. 49.A conviction can only be based on the weight of actual evidence adduced. In David Kimani Kimaita v Republic (supra), the court cited with approval the principle that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt; what is required is a high degree of probability based on the evidence. The appellant's defence was a bare denial and did not shake the prosecution case. I therefore find that there was no reasonable doubt to be resolved in favor of the appellant. The sixth ground of appeal fails. Issue IV: Whether the sentence imposed was lawful. 50.I now turn to the issue of sentence as submitted by the respondent. The appellant was convicted of defilement of a child aged ten years under section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(2) provides that a person who commits defilement with a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life. 51.The Supreme Court has recently pronounced itself on the sentence of life imprisonment under section 8(2) of the Sexual Offences Act. In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), the Supreme Court held that the Court of Appeal erred by substituting the sentence of life imprisonment with a determinate sentence, thereby usurping the legislative power to define sentences. The court further held that the life imprisonment sentence remained lawful and in line with section 8 of the Sexual Offences Act. The same position was reiterated in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR). 52.In light of the binding pronouncements of the Supreme Court, and having found that the complainant was ten years old at the material time, I find that the sentence of life imprisonment imposed by the trial court was lawful. 53.Consequently, the appeal against conviction and sentence lacks merit. The conviction is hereby upheld and the sentence of life imprisonment is affirmed. 54.Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 10TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/VelmaMR. Kaguru for the Appellant present online.