https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7901

Mula v Republic (Criminal Appeal E068 of 2024) [2026] KEHC 7901 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7901 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E068 of 2024 AN Ongeri, J June 4, 2026 Between Vincent Muchina Mula Appellant and Republic Respondent (Being an appeal from the conviction and sentence of Hon P. WECHULI (PM) in KITHIMANI SO Case No. E008 of 2024 delivered on 7/8/2024) Judgment 1.​The Appellant was sentenced to 20 years imprisonment for the offence of defilement c/s 8(1) as read with 8(3) of the SOA No 3 of 2006. 2.​The particulars of the offence were that on 13/1/2024 at [particulars Withheld] in Yatta Subcounty within Machakos County, the Appellant intentionally caused his penis to penetrate the vagina of V.H-A, a child aged 14 years. 3.​The Appellant pleaded not guilty to the charges. The prosecution called a total of four (4) witnesses. 4.​The prosecution evidence in summary was that the Appellant was a neighbour at [particulars Withheld]. 5.​The complainant who testified as PW1 said on 13/1/2024 she was sent home from school for money. 6.​She found her mother was away and she sat outside at 8am. 7.​The Appellant saw her sitting outside and he told her to go and get money from his house. 8.​The complainant stood outside his house. He told her to go get the money from the mattress. 9.​The Appellant lived in a one roomed house. When the complainant entered to get the money, he followed her and shut the door and he placed her on the bed and removed her inner clothes and raped her. 10.The complainant’s mother gave a similar account of the incident. She produced the complainant’s birth certificate which shows she was born on 24/10/2010 and therefore at the date of the incident she was 14 years old. 11.​The complainant was taken to Matuu Level 4 Hospital where PW3, Riziki Zainab, a clinician examined her. 12.​PW3 said her private parts were normal. Her hymen was broken but not fresh. There were bruises on Labia Minora. 13.The Appellant said on 13th, the complainant went to his house and knocked at the door at 7:30am. He asked her what the matter was. 14.​She told him she had been sent for school fees and her mother was not at home. 15.​The Appellant said he told her to go back to school. 16.​The Appellant said he still saw her around when he went to work. 17.​He said the complainant called her mother and told her he had raped her. 18.The trial court found the appellant guilty as charged and sentenced him to 20 years imprisonment. 19.​The appellant has now appealed against the conviction and sentence on the following grounds;i.That the Hon. Trial court Magistrate erred in law and fact by failing to find that the prosecution failed to prove penetration of the alleged complainant's genitalia as required by law.ii.That the Hon. Trial court Magistrate erred in law and fact by failing to find that the prosecution never proved the age of the Complainant as required in law.iii.That the Hon. Trial court Magistrate erred in law and fact by failing to find that I was not properly identified as the perpetuator of the offences alleged as defined by law.iv.That the Hon. Trial court Magistrate erred in law and fact by failing to find that the witnesses in this case were incredible witnesses whose evidence could not be used to base a conviction.v.That the Hon. Trial court Magistrate erred in law and fact in convicting the appellant based on the complainant's single evidence without giving the reason for her believing in the said complainant's testimony. 20.​The parties filed written submissions as follows; The appellant submitted that he seeks to overturn his conviction and sentence in Kithimani SO Case No. E008 of 2024. 21.The appellant argues that the trial magistrate made legal and factual errors. First, he claims the prosecution’s case contained substantial contradictions and inconsistencies, such as the complainant stating she was defiled on two different dates (March 2024 and May 2023), which he says is impossible because he had not even moved to the area by May 2023. 22.He also challenges the medical evidence, pointing out that the complainant claimed she bled profusely into her uniform, yet the clinical report from the next day found no blood or fresh wound, only old bruises and a broken hymen that was not fresh. 23.He argues that a vaginal wound cannot heal into a scar within one day, and that the clinician admitted no DNA test was done to link him to the injuries. 24.Second, he attacks the credibility of the witnesses, particularly the complainant and her mother, alleging that the mother fabricated the case because he rejected her romantic advances. 25.He notes that no neighbors heard screams, no school witnesses were called, and the complainant’s behavior was inconsistent with that of a genuine victim. 26.Third, he contends that penetration was not proved, as the medical report does not corroborate the complainant’s testimony regarding the timing or nature of the injuries, and without a DNA link or reliable complainant evidence, the case must collapse. 27.Fourth, he argues that the sentence is harsh and excessive, citing Kenyan Supreme Court and appellate decisions that mandatory sentences violate judicial discretion and a convict’s dignity. 28.He requests that the appeal be allowed, the conviction quashed, and he be set free, or alternatively that the sentence be reduced to time served. 29.Throughout, he emphasises that contradictions and a single doubt should entitle him to an acquittal, and he asks the court to find that the prosecution failed to prove its case beyond reasonable doubt. 30.The respondent in its submissions oppose the appeal filed by Vincent Muchina Mula against his conviction and sentence for defilement under section 8(1) as read with section 8(3) of the Sexual Offences Act. 31.The respondent submitted that the inconsistencies raised by the appellant, such as discrepancies over the date of the offence and the minor’s name, are immaterial and curable under section 382 of the Criminal Procedure Code, and that they do not prejudice the appellant. 32.The prosecution maintains that the evidence, including the complainant’s testimony and medical findings of a broken hymen and bruises, sufficiently proves penetration and defilement. 33.The respondent highlights that under section 124 of the Evidence Act, the uncorroborated evidence of a minor victim can sustain a conviction if the trial court believes the witness is truthful. 34.Regarding the sentence, the respondent notes that section 8(3) prescribes a minimum of twenty years’ imprisonment, and the trial court’s sentence is lawful and not harsh, particularly given that the appellant took advantage of a young schoolgirl sent home for school fees. 35.The respondent therefore urges the court to dismiss the appeal as lacking merit. 36.The issues for Determination in this appeal are as follows;I.Whether the prosecution proved penetration beyond a reasonable doubt.II.Whether the prosecution proved the age of the complainant beyond a reasonable doubt.III.Whether the sentence of 20 years was lawful and proper. 37.I have re-evaluated the evidence on record as is my duty as the first appellate court. 38.On the issue of penetration, the complainant (PW1) gave a clear and detailed account of how the appellant penetrated her. 39.Her testimony is that the appellant shut the door, placed her on the bed, removed her inner clothes, and raped her. 40.This testimony is the primary evidence of penetration. Under Section 124 of the Evidence Act (Cap 80), a trial court can convict on the uncorroborated evidence of a victim of a sexual offence if it records reasons that the victim is telling the truth. 41.The trial magistrate believed the complainant was truthful, and I see no reason to disturb that finding. 42.Although the medical evidence from PW3 stated the hymen was broken but not fresh, it also confirmed the presence of bruises on the labia minora, which is consistent with recent forceful penetration. 43.The absence of fresh tears or DNA does not negate the complainant’s direct testimony. The appellant’s defence was a mere denial, and the alleged contradictions on the date or the mother’s motive are not material enough to dislodge the finding of penetration. 44.On the issue of the victim’s age, the prosecution proved this essential ingredient beyond a reasonable doubt. 45.The complainant’s mother (PW2) produced a birth certificate showing the child was born on 24/10/2010, making her 14 years old on 13/1/2024. 46.This documentary evidence is the best evidence of age . The trial court correctly relied on it. Since the offence was proved for a child aged 14 years, the applicable penalty is indeed found in Section 8(3) of the Sexual Offences Act. 47.Regarding the sentence, the appellant’s argument that the sentence is excessive fails. 48.The words "not less than" in Section 8(3) mean a minimum sentence of 20 years imprisonment. 49.The trial court had no discretion to impose a lesser sentence, and the term of 20 years was therefore the lawful and minimum sentence for the offence. 50.Consequently, the appeal against the sentence is dismissed, and the conviction is upheld. 51.In the final result, the appeal against conviction is dismissed, and the appeal against sentence is dismissed. The judgment of the trial court is affirmed. 52.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofMr Nechesa Maina for the AppellantThe Appellant present at Kamiti GK PrisonPC Mr Mangare – for StateChrispine - Court Assistant