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Mulei v Republic (Criminal Appeal E025 of 2025) [2026] KEHC 12012 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12012 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E025 of 2025 MW Mutuku, J July 30, 2026 Between Mwanzia Mulei Appellant and Republic Respondent (Being an appeal against conviction and sentence from the Judgment of the trial court, Hon. M.K Kibe (SPM) in Makindu MCSO No. E021 of 2024) Judgment 1.The appellant was charged with the offence of defilement of child contrary to Section 8(1) as read with Section 8(3) of the sexual Offences Act no. 3 of 2006. 2.The particulars of the offence were that the appellant, on the 23rd March 2024 at Emali Township at Nzaui Sub- County intentionally and unlawfully caused his penis to penetrate the vagina of J.M.M, a girl aged 14 years. 3.The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. On the 23rd March 2024 at Emali Township at Nzaui Sub- County intentionally and unlawfully touched the vagina of J.M.M, a girl aged 14 years.. 4.The appellant was convicted of the defilement of child contrary to Section 8(1) as read within Section 8(3) of the sexual Offences Act no. 3 of 2006 to serve 20 years imprisonment. 5.The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:a)That the learned trial magistrate erred in law and facts by convicting the appellant on evidence that did not meet the minimum threshold to uphold a conviction.b)That the learned trial magistrate erred in law and facts by not considering the appellants sworn defense and mitigation.c).That the trial court erred in both law and facts by not considering that the prosecution evidence was marred with fabricated stories which did not at any point bring out the nexus between the appellant and the alleged offence.d)That the trial court erred in both law and facts by failing to acknowledge the gaps between the key witnesses’ testimony that brought about contradictory evidence which led to erroneous decision by the magistrate.e).That the appellant be furnished with law proceedings to enable him lodge more amended grounds of appeal. Evidence. 6.J.M is the victim / complainant in this case. She told the court that on 23rd March 2024, she had gone to collect firewood. That the appellant requested her to get into his house, and as she took water in his house, the accused locked the door. He lay her on the bed, undressed himself and the child and he penetrated the vagina of the complainant. 7.After she raised alarm, the appellant went to check out if there were people around, and that is when the complainant got an opportunity to leave, and ran to her mother’s place. She reported the incident to her mother, and the mother reported to the police and the appellant was arrested and later charged with the offence before the court. 8.In cross examination, the complainant told the court that the appellant was well known to her as they resided in the same plot, and that Jacob had heard her screaming. 9.Pauline Munayo (pw2) told the court that a man by the name Jacob Wambua went to the stall where she sold groceries on 23rd March 2024, and requested him to accompany her. That he was going to show her the man who had hurt her daughter. She accompanied him, and in the company of police officers, the appellant was arrested from his house where he was sleeping. They also took the child and after the matter was booked at the police station, the complainant was escorted to the hospital for medical examination. 10.In cross examination, she stated that her daughter is aged 15 years, though she did not a birth certificate to support this. She also told the court that the appellant was well known to her. 11.JKW (PW 3) is a neighbour to the appellant. When he went home, his wife told him that he had heard a child talking inside the appellant’s house. He heard her speaking and after a short while, he heard a scream form the appellant’s house. Shortly, he saw her leaving the house. 12.Jacob later went to the stall where the mother to the victim was selling groceries, and informed her what he had witnessed. Together they went to the police station and reported the matter. His evidence was that he had spoken to the child and asked her what had happened, and that the child told him that the appellant had done bad manners to her, that he had removed her clothes and lay on her. 13.Frank Musembi Musau is a clinical Officer based at Makueni County Orete Health care. He confirmed that the complainant was taken to the hospital for medical examination. She gave history of having been sexually assaulted by someone well known to her, by the name Mwanzia. 14.Upon examination, the hymen was broken, though not freshly broken. She had a whitish vaginal discharge, and no spermatozoa was seen. He produced the treatment notes, outpatient card, laboratory request form and the P3 form that he had filled as exhibits before the court. 15.In cross examination, the medical officer stated that the presence of epithelial cells was evidence that there was sexual activity. He also stated that the complainant did not tell the doctors about the condom worn by the appellant. 16.Dr. Macharia is a dentist based at Makindu Level 4 hospital. He examined the complainant in this case on 25th March 2025, for purposes of ascertaining her age. He upon examination drew the conclusion that she was aged between 14 and 15 years. He produced the age assessment report as an exhibit before this court. 17.No. 1xxx0 P.C Salome Kanini, an officer based at Emali Police Station was the investigating officer in this case. She confirmed that the case was reported to the police on 23rd March 2024. She commenced her investigations and the complainant told her that she had gone to collect firewood, when the appellant sent her to fetch water for him. That the appellant removed her clothes and defiled her. The victim was escorted to hospital for treatment and examination, and after investigations, the appellant was later charged with the offence before the court. 18.In cross examination, the investigating officer established that there was a witness who had seen the complainant leaving the appellants house. She also established that there were no prior grudges between the parties in this case. 19.Upon the closure of the prosecution's case, the court gave a ruling on whether there was a case to answer. Section 211 of the Criminal Procedure Code was complied with. The appellant opted to give sworn testimony. 20.DW1 was the Appellant. He testified that he on the 23rd March 2024, he had left his house to go and look for work. That he was engaged to load water melons and left for Emali. That he got home at midnight. The following day, at around 1p.m he heard a knock on his door. That is when he was arrested and escorted to Emali police station and later charged with the offence before court. He denied the charges and stated that he did not know why he was charged with the charge before court. 21.In cross examination, he confirmed that he knew a man by the name Jacob. That Jacob is the one who identified his house to the police. He also stated that he had no grudges with the complainant and her mother, though he had grudges with Jacob. 22.In his defence, Damaris, the wife o the appellant told the court that the appellant had left home at 10.00. That he came back home at 1 p.m and that was when he was arrested by the police on allegations that he had defiled the complainant. Submissions.The Appellant submitted that the prosecution evidence was riddled with contradictions and inconsistencies, and that the case was fabricated and fragmented in order to secure a conviction. Analysis 23.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different finding” 24.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic, the East Africa Court of Appeal stated on the duty of the court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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; it must make its own findings and draw its own 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, see Peters v. Sunday Post, [1958] E. A. 424.” 25.The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 26.Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 27.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 28.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:“Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.” 29.It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only one main issue, that is: a)Whether the offence was proved to the required standards. 30.On the question of proof of the offence of defilement. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)…(8)The provisions of subsection(5)shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 31.On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows:(1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.(2)It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.(3)The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.(4)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141)(5)The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 32.In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 33.The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children.The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016)eKLR stated as follows in respect of proving the age of a victim in cases of defilement:...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. 34 .While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim." 35.It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:“In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense." 36.I find and hold that though the complainant did not have and produce any documentary evidence to prove her age, she was examined by a doctor, who established her age as 14 to 15 years. He produced the age examination report as an exhibit on court. 37.On the issue of identification, the victim and the complainant were well known to each other. The complainant stated that the appellant was a neighbour and that they reside at the same plot. Besides the complainant, she was seen by PW3 , Jacob, who is a neighbour to the appellant leaving his house. I am satisfied that the prosecution has proved this element to the required standards. 38.The last issue is penetration. The medical evidence showed there was penetration. The minor herself testified on what happened to her. Even without medical evidence, it will be safe to convict the appellant. 39.Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 40.In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ. 41.It is thus not a defence that the injuries were not serious or the penetration was not complete. The complainant stated that the appellant called her into his house and removed her clothes, and that he also undressed and then inserted his penis in her vagina. That she felt pain and screamed, evidence which was corroborated by the neighbour by the name Jacob. The appellant was caught in Flagrante delicto. Jacob saw the girl leaving his house and informed the mother. The penetration was thus proved. The net effect is that the appeal lacks merit and is accordingly dismissed. 42.The court meted out a sentence of 20 years from the date of arrest. The minimum mandatory sentence provided under section 8(3) of the sexual offences act is a minimum of 20 years. There is no other sentence provided. The sentence meted out is the mandatory minimum sentence. Therefore, I find that the sentence is legal. I find the appeal devoid of merit and hereby uphold the judgment and sentence of the trial court. DeterminationIn the circumstances, I make the following orders: -a.The Appeal on conviction lacks merit and is accordingly dismissed.b.The sentence meted out is lawfulc.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED ON 30TH DAY OF JULY, 2026.JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKUJUDGEIn the presence of: -Miss for the StateAppellant in personCourt Assistant – Mr. Kibet.