https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12425

Mugo v Republic (Criminal Appeal E058 of 2024) [2026] KEHC 12425 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12425 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E058 of 2024 JN Njagi, J July 29, 2026 Between Francis Githau Mugo Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. E.K.Too, SPM in Hola Senior Principal Magistrate`s Court Criminal Case No.E007 of 2023 delivered on 2/5/2024) Judgment 1.The appellant herein was convicted of the offence of defilement contrary to section 8(1) as read together with 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between 21st and 27th May 2023 at (name withheld) village in (name withheld) sub county within Tana River County he intentionally and unlawfully caused his penis to penetrate the vagina S.N. (herein referred as the complainant), a child aged 16 years. 2.The appellant was sentenced to serve 15 years imprisonment. He was aggrieved by the conviction and sentence and lodged the present appeal. The grounds of appeal as per his amended grounds of appeal are that:1.That the learned trial Magistrate erred in law and facts by failing to find the age of victim was not established according to the parameters of the law.2.That the learned Magistrate erred in law and facts in failing to find that penetration on the complainant was not proved for the lack of the medical evidence.3.That the learned Magistrate erred in law and facts to in failing to find that there were massive contradictions, inconsistencies and invariancies in the case for prosecution.4.That the learned Magistrate erred in law and facts in failing to find that the appellant deserved benefit of doubt in the case. to the Appellant and that no mitigation chance was awarded to the Appellant pursuant to section 216 and 329 of the Criminal Procedure Code.5.That the learned Magistrate erred in law and facts in failing to find that the trial court did not give the appellant a chance to offer his mitigation in the case. Case for prosecution 3.The case for the prosecution was that the complainant that at the material time aged 14 years. She was staying with her mother PW2. That on a Sunday which date she did not tell the court she went home late and her mother wanted to discipline her. She escaped from home and went to the house of her friend, the appellant who was a form 4 student. That she hid at his house for several days. They engaged in sexual intercourse on several occasions. She got information that her mother was looking for her. Later the police arrested her and took her to the police station. 4.The mother to the complainant testified that the complainant disappeared from home. She looked for her and found her. She took her to the police station and then to hospital. 5.A clinical officer at Hola County Referral Hospital PW2 testified that the complainant was examined at their hospital by Dr. Hawa Abdul on 28/5/2023. That the doctor found her with a broken hymen. The examining doctor completed the complainant`s P3 form and Post Rape Care form. 6.The case was investigated by PC Kipkorir PW4 of Hola police station. It was his evidence that on 22/5/2023 the mother to the complainant went to the police station and reported that her daughter had eloped with a certain person to Majengo village. That he went with the reportee to the said place. They found the girl at a certain homestead. They found the girl with a bag in which there was the identity card of one Francis Gitau Mugo who was her boyfriend. They took the girl to Hola police station. He, PW 4, took her to hospital for examination. He then arrested the appellant and charged him with the offence. 7.During the hearing of the case in court, the clinical officer PW2 produced the P3 form, the treatment notes and the Post Rape Care form on behalf of Dr. Hawa, as exhibits , P.Exh. 2, 3 and 4 respectively. The mother to the complainant produced the complainant`s birth certificate as exhibit, P.Exh. 1. Defence case 8.When placed to his defence the appellant stated in a sworn statement that he was working as manager with NIB. That on 27/5/2023 he left his bag containing his national identity card, some certificated and a small booklet at the form. He went to pay workers at the farm. When he went to check his bag, he did not find it. That on 16/5/2922 he was seated on a bench when police officers went and arrested him and took him to the police station. He was locked up. He was arraigned in court. 9.The appeal was canvassed by way of written submission. Appellant`s submissions 10.The appellant submitted that the age of the complainant was not proved. That the clinical officer alluded to there being an age assessment report but the same was not produced in court. 11.It was submitted that the medical evidence adduced before the court did not support the charge of defilement. 12.The appellant submitted that the complainant said in her evidence that she was found with a person called Jay. He submitted that Jay was the person who defiled the complainant and not him. He submitted that the complainant is not a truthful witness. 13.He submitted that the trial court did not consider his alibi defence. Nor did the court consider his mitigation. That the sentence imposed on him was harsh. 14.The Respondent on the other hand submitted that the ingredients of the offence of defilement of proof of the age of the victim, proof of penetration and proof of positive identification of the perpetrator were proved beyond reasonable doubt. That the complainant was arrested inside the house of the appellant. Analysis and determination 15.This being a first appeal, the court has a duty to re-evaluate and re-consider the evidence on record and come to its own conclusion. The court should also appreciate the fact that unlike the trial court it did not have the advantage of seeing and hearing the witnesses. These principles were re-stated by the Court of Appeal in the case of Kiilu & another v Republic [2005]1 KLR 174, 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. 16.The appeal is based on the grounds that the elements of age and penetration on the complainant were not proved; that there were contradiction and inconsistencies in the prosecution case and that the trial court did not consider the appellant`s defence. 17.The elements of the offence of defilement that the prosecution is required to proof beyond reasonable doubt are: proof of the age of the victim, proof of penetration and identity of the perpetrator, see the Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013. 18.Starting with the element of the age of the complainant, the law is that the age of a person can be proved in various ways. In the case of Mwalongo Chichoro Mwajembe -Vs- Republic, Msa Cr.App. No. 24 of 2015 (UR), the Court of Appeal held as follows:“... 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.” 19.The complainant told the court that she was at the material time of the age of 14 years. Her mother PW3 referred to her birth certificate P.Exh.9 and stated that she was born on 20/9/2009. The offence was said to have been committed in May 2023, which placed the age of the complainant at that time at 13 years. It was therefore proved that the complainant was a minor at the material time. 20.On the element of penetration, the same is defined in Section 2 of the Sexual Offences Act as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 21.Penetration can be proved by way of oral evidence of the victim or by circumstantial evidence which can be corroborated by medical evidence. In the case of Kassim Ali v Republic (2021) eKLR the Court of appeal stated that;“….the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence.” 22.The trial court in convicting the appellant of the offence said that the complainant had been defiled because the doctor who examined her found her with a broken hymen. Though the doctor found the complainant with a broken hymen, there was no evidence that the same was freshly broken. Besides that, the mere absence of hymen is not by itself prove of penetration as the hymen can be broken by other factors including vigorous exercise, see P.K.W v Republic (2012) KECA 103 (KLR). The trial court was in error to find that the broken hymen was proof of penetration. There was thus no medical evidence to link the appellant with penetration on the complainant. 23.That leaves for consideration the oral evidence of the complainant that the appellant penetrated her. 24.Section 124 of the Evidence Act permits the court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for making such a finding. The trial court, though not saying it in plain words, believed the evidence of the complainant that she was defiled by the appellant. 25.It was the evidence of the complainant that she escaped from home and went to hide at the house of the appellant. That she stayed with him for several days before policemen arrested her. That after the appellant was remanded in prison custody she took off from home and she was found with a friend to the appellant called Jay. That she was taken to the police station and released. 26.The investigating officer of the case PW4 stated that they arrested the complainant at a certain homestead after which she went to show them where she used to stay with the appellant. This means that the complainant was not arrested at the house of the appellant. The mother to the complainant PW3 also did not say that the complainant was arrested in the house of the appellant. Whose homestead then was it where the complainant was arrested by the police if she was not arrested at the appellant`s house as she claimed? Is it possible that she was living with another man and picked the appellant as a scape goat? How come that she took off to stay with another man immediately the appellant was put in prison? The fact that the complainant was not arrested by the police in the house of the appellant as she claimed shows that she was not a credible witness. The trial court did not give cogent reasons for believing her evidence. I find that the evidence adduced against the appellant was not safe to sustain the conviction. The appellant was entitled to the benefit of doubt. 27.The upshot that the case against the appellant was not proved beyond reasonable doubt. The conviction is thereby quashed and the sentence set aside. I order the appellant be set at liberty forthwith unless he is otherwise being lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 29TH DAY OF JULY, 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant: present virtually at G.K. Prison MalindiCourt Assistant - Luckson