Muli v Republic (Criminal Appeal E038 of 2024) [2026] KECA 1370 (KLR) (10 July 2026) (Judgment)

Muli v Republic (Criminal Appeal E038 of 2024) [2026] KECA 1370 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1370 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E038 of 2024 PO Kiage, J Mohammed & L Ndolo, JJA July 10, 2026 Between Philip Mutua Muli Appellant and Republic Respondent (Appeal from the Judgment of the High Court at Kiambu (Mutende, J.) delivered on 28th November 2019 in HCCRA No 44 of 2019) Judgment 1.The appellant, Philip Mutua Muli, was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, particulars being that on 24th May 2014, within Kiambu County, he intentionally and unlawfully caused his penis to penetrate into the vagina of CW, a girl aged 13 years. 2.The appellant faced an alternative charge of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act, particulars being that on 24th May 2014, within Kiambu County, he intentionally and unlawfully touched the vagina of CW a girl aged 13 years, with his penis. 3.The appellant was further charged with the offence of conspiracy to commit a felony, jointly with another, contrary to section 33 of the Penal Code, particulars being that on 24th May 2014, within Kiambu County, he conspired to commit a felony namely, defilement. 4.The appellant was tried before the Chief Magistrate’s Court at Nairobi and was convicted of both Counts 1 and 2 for which he was sentenced to 20 years’ imprisonment on the 1st count and 5 years on the 2nd count, with both sentences running concurrently. He appealed to the High Court at Kiambu and by a judgment delivered on 28th November 2019, Mutende J dismissed his appeal on both conviction and sentence. 5.Being dissatisfied with the decision of the High Court, the appellant has come to this Court on a second appeal. In both the memorandum of appeal and submissions in support of the appeal, the appellant focuses on the conviction and sentence for the offence of defilement. This judgment is therefore written on the basis that there was no challenge with regard to the conviction and sentence on the 2nd count of conspiracy to commit a felony. 6.In his memorandum of appeal, the appellant faults the learned High Court Judge for; failure to analyze the ingredients of the charge of defilement, failing to appreciate that the prosecution had not complied with section 77 of the Evidence Act, failing to find that PW1 on whose evidence the prosecution relied, was not a credible witness, and ignoring the defence of alibi presented by the appellant. 7.Without prejudice to the foregoing grounds of appeal, the appellant states that the sentence imposed on him was excessive and therefore asks this Court to review it. 8.When the appeal came up for hearing on 23rd February 2026, the appellant appeared virtually from Kamiti Medium Security Prison while Learned Prosecution Counsel, Mr. Omondi appeared for the respondent. 9.This being a second appeal, the Court is restricted, under section 361 of the Criminal Procedure Code, to matters of law only. This position was affirmed in this Court’s decision in Karingo & 2 Others vs. R [1982] KECA 23 (KLR) in the following terms:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari s/o Karanja v Republic (1950) 17 EACA 146).” 10.The first ground of appeal set forth by the appellant is that the High Court failed to analyze the ingredients of the charge of defilement. There are three ingredients attaching to the offence of defilement namely; the age of the victim, penetration and identification of the offender. 11.In the impugned judgment, the learned Judge of the High Court relied on this Court’s decision in Mwalengo Chichoro Mwajembe vs Republic [2016] eKLR where it was held that:“…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 documentary 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 parent or guardian or medical evidence or other credible forms of proof.” 12.In the trial leading to this appeal, a birth certificate was produced, confirming the minor’s date of birth as 19th September 2020. From this documentary evidence, which was not controverted, the victim was 13 years old at the time the offence was committed. The ingredient of age was therefore established beyond reasonable doubt. 13.In proving penetration, the prosecution called Dr. Miringo from Thika Level 5 Hospital (PW3) who produced a P3 form, a Post Rape Care (PRC) form and treatment notes documented by Dr. Allanra Abdikadir. This evidence was admitted pursuant to section 33 of the Evidence Act by which statements by a person whose attendance cannot be easily procured may be produced by another person who is familiar with the handwriting of the maker of the statement. 14.Reliance was also placed on, section 77(1) and (2) of the Evidence Act which provides as follows: 1.In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence. 2.The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it. 15.Dr. Miringo (PW3) confirmed that he was familiar with the handwriting of Dr. Abdikadir who prepared the medical report, P3 form and PRC form on the minor. What is more, the appellant did not object to production of these documents. 16.The aforesaid documents indicated that the minor’s vagina was perforated and the hymen penetrated. Although no infection or spermatozoa were detected, penetration was proved in accord with the definition contained in section 2 of the Sexual Offences Act, which provides that penetration may be either full or partial. 17.With regard to identification of the appellant, the minor who gave a sworn statement, pursuant to a voire dire examination, testified that on 24th May 2014, she was at home with her brother, when the appellant in the company of one Gitau, lured her to Gitau’s room where the appellant molested her from 2:00 am to 3:00 am. The appellant was categorical that the appellant, who went by the nickname ‘Kasman’ was well known to her. 18.From the evidence on record, the minor positively identified the appellant as her assailant. The appellant made a blanket statement that the minor was not a credible witness but did not support this allegation with any evidence. 19.The fact that there was no other eye witness at the commission of the offence, apart from the complainant, did not assail her testimony. Indeed, section 143 of the Evidence Act provides that a conviction can be achieved by the evidence of a single witness, provided that such evidence is properly tested at trial. 20.In the persuasive decision in R vs. Turnbull & Others [1973] 3 ALL ER 549, the factors to be considered in a conviction on the evidence of a single witness were established as; the duration of time the witness had with the perpetrator, the distance, lighting and previous encounter. 21.In its decision in Wamunga vs. Republic [1989] KLR this Court stated the following:“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.” 22.The trial court found and the first appellate court affirmed, that the appellant was well known to the complainant, discounting the fact that the offence took place at night while factoring in the duration of assault. The appellant’s defence of an alleged alibi was considered and rejected. 23.It its decision in Adan Muraguri Mungara vs. Republic (Cr Appeal No 47 of 2007) this Court reaffirmed the circumstances under which it will disturb concurrent findings of fact by the trial court and the first appellate court stating thus:“As this Court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings. That would mean that the decision is bad in law, thus entitling this Court to interfere.” 24.Having examined the record of appeal and the submissions filed by the parties, we find nothing to suggest any error of law or miscarriage of justice, on the part of the learned Judge of the High Court. Penetration and the age of the minor were established beyond reasonable doubt. Moreover, the record reveals that the appellant was a person well known to the complainant, meaning that his identification as the perpetrator of the offence was by way of positive recognition, with no possibility of error. 25.Consequently, we find no reason to cause us to overturn the decision of the High Court confirming the conviction by the trial court. 26.On the plea on sentence, the only thing we will say is that the Supreme Court, whose decisions are binding on this Court, has authoritatively held that where a minimum sentence is imposed by statute, courts have no room to tinker with such a sentence. (see Republic vs Manyeso [2025] KESC 16 (KLR) and Republic vs. Ayako [2025] KESC 20 (KLR)). 27.Section 8(3) of the Sexual Offences Act, under which the appellant was charged, provides for the minimum sentence of 20 years’ imprisonment. This is the sentence imposed by the trial court and confirmed by the first appellate court. The plea on sentence therefore is also rejected. 28.On the whole, the appeal is found to be without merit and is dismissed. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.P.O. KIAGE.............................JUDGE OF APPEAL JAMILA MOHAMMED.............................JUDGE OF APPEALL.M. NDOLO.............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR