https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10571

Munyao v Republic (Criminal Appeal E044 of 2025) [2026] KEHC 10571 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEHC 10571 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E044 of 2025 NIO Adagi, J July 14, 2026 Between Nicholas Musyoki Munyao Appellant and Republic Respondent (Being an appeal from the original S/O Case No. E027 of 2023 at Kangundo Law Courts) Judgment 1.The Appellant Nicholas Musyoki Munyao was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars are that between on the 11th day of June 2023 and 18th day of June 2023 [Particulars Withheld] Location in Matungulu Sub-county within Machakos County intentionally and unlawfully caused his penis to penetrate the vagina of P.M.M (name withheld) a child aged 5 years contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. 2.In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars are that between the 11th day of June 2023 and 18th day of June 2023 at [Particulars Withheld] location in Matungulu Sub-county within Machakos county intentionally and unlawfully touched the vagina of P.M.M (name withheld) a child aged 5 years with his penis against her will contrary to Section 11(1) of the Sexual Offences act. 3.The Appellant pleaded not guilty to the main charge and the alternative charge and the matter was set down for hearing. The prosecution called four (4) witnesses in proving its case. The appellant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Act and sentenced to life imprisonment on 12/05/2025. 4.Being dissatisfied with the decision of the trial court, the Appellant has lodged the instant appeal against both the conviction and sentence. The Appellant’s undated Petition of Appeal sets out grounds of appeal as follows:1.That the prosecution witnesses are marred with contradictions and inconsistencies.2.That his defence was disregarded despite proving his case.3.That his mitigation grounds were not considered during sentencing in the matter.4.That the trial court’s magistrate acted in ignorance of Article I of the Constitution of Kenya. 5.In his submissions dated 4th April 2026, the Appellant amended his grounds of appeal as follows:l.That the trial court conducted in breach of right of fair trial especially by dint of Article 50(2((h) of the Constitution of Kenya 2010.2.That the burden of proof was not discharged to the required standard.3.That the section 199 of the Criminal Procedure Code and Section 124 of the evidence Act were not adhered to.4.That the sentence imposed was excessive, harsh and unjust. 6.The appeal was canvassed through written submissions. The Appellant’s submissions are dated 4th April 2026 while his rebuttal submissions are undated. The Respondent’s submissions are dated 25th May 2026. 7.In summary, the Appellant submitted that his mode of cross-examination of the prosecution witnesses was shaky and questions lacked quality. His defence did not anywhere challenge the prosecution's case. He was not aware of what is meant by being placed on defence. He really deserved a probono advocate. The failure by the trial court to allocate him one greatly prejudiced him. The magnitude of injustice since meted on the Appellant courtesy of the failure by the learned trial magistrate to allocate the Appellant a probono advocate has no earthly explanation and that this case is one fit for retrial. 8.In summary, the Respondent submitted that the trial court properly evaluated the evidence and came to the right conclusion hence the appeal should be dismissed in its entirety. Analysis and Determination 9.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno -vs- Republic (1972) EA 32 where it was stated as follows: -“An appellant 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 the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 10.Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 11.In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 12.In the case of Mwangi vs Republic [2004] eKLR 28. It was held as follows:“Any 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 have the appellate courts own decision on the evidence” 13.Having subjected the evidence to fresh and exhaustive re-examination, considered the trial court’s judgement, the grounds of appeal and the submissions of the parties, I find the following as issues for determination;a.Whether the prosecution proved its case beyond reasonable doubtb.Whether the sentence should be reviewed Whether the prosecution proved its case beyond reasonable doubt 14.It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller.vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:“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 beyond reasonable doubt, but nothing short of that will suffice.” 15.In this case, the Appellant was charged and sentenced to life imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. 16.The offence of defilement is provided for under Section 8 of the Sexual Offences Act. Section 8(1) provides that:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. 17.To sustain a conviction for the offense of defilement, the prosecution has to prove three ingredients beyond reasonable doubt. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. The Court in that case stated:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant”. 18.Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt. Did the prosecution discharge this task? 19.According to the Appellant the prosecution failed in this undertaking, whereas the Respondent is of a different view. Age of victim 20.PW1 the Medical Officer at Kangundo Level 4 Hospital testified that she examined a 5-years 6-months old female patient on June 16, 2023 brought by her mother. PW2 was NKN, mother of the victim who testified that the victim was a 5-years-old girl born on October 4, 2017 which was confirmed by the victim’s Child Health and Nutrition Card, (PExt.3). 21.In Lekimenchu v Republic (Criminal Appeal No. 84 of 2017) [2024] KECA 805 (KLR) (5 July 2024), the Court of Appeal stated thus:“On the age of the victim, there was ample evidence adduced before the trial court to prove that she was 5 years old. Her mother’s evidence coupled with the Birth Certificate produced as evidence laid that issue to rest” 22.Also, the Court of Appeal in Diwalango Chichoro Mwanjembe v Republic (2016) eKLR 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 parents or guardian or medical evidence, among other credible forms of proof'” (emphasis mine). 23.Guided by the foregoing cited decisions, this court therefore finds that the prosecution sufficiently proved the age of the victim to be 5 years. penetration 24.On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows:“The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 25.1 have considered the evidence tendered by the Prosecution witnesses as regards penetration in this case. The relevant evidence that touches on the alleged defilement is that of PW1- the Clinical Officer, PW2- victim’s mother and PW3-complainant/ victim. 26.PW1 testified that she examined the victim on 16th June 2023 and she had a foul smelly discharge from her vagina. There were lacerations at the 9 O’clock and 3 O’clock of her vagina with the same being inflamed. PW2 on the other hand testified that the victim told her that Niko removed her clothes after he had taken her to pick macadamia and put his susu (penis) in her susu (vagina). She stated that she checked the child’s private parts and saw dirt. She reported the matter to the police who referred her to hospital where a P3 form was filled. PW3 stated that the Appellant removed her clothes, laid her down, removed his clothes and laid on her. He placed his susu (penis) in her susu (vagina). PW3 described Kasusu as what is used to urinate. She said that she told her mother about it. The Investigating office in her investigations got consistent statements from the victim and her mother and a medical report to corroborate them. In his defence the Appellant denied defiling the victim. 27.On the foregoing, this court finds that first, penetration was proved by the medical evidence of foul smelly discharge, laceration at the 9 O’clock and 3 O’clock of the victim’s vagina with the same being inflamed. Just like the trial magistrate I find no reason to be convinced that penetration did not occur in light of the evidence tendered by the prosecution to prove the same. Accordingly, I find that the prosecution proved the ingredient of penetration beyond reasonable doubt. Positive identification of the assailant 28.Lastly, on whether the Appellant was positively identified as the assailant, the victim stated that the person who held her was Niko and he was from their home. PW2 stated that the Appellant was her brother’s son. Therefore, the Appellant was a nephew to the victim’s mother and a first cousin to the victim. Identification was thus by recognition which is the best from of identification. On the issue of identification, the Court of Appeal in the case of Peter Musau Mwanzia Vs The Republic (2008) eKLR expressed itself as follows:“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing that the suspect at the time of the offence can recall very well having seen him earlier on before the incident” 29.Section 124 of the Evidence Act Cap 80 of the Laws of Kenya provides that:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 30.The victim’s evidence was corroborated with that of her mother and the Clinical Officer in support thereof implicating the Appellant herein pursuant to the provisions of Section 124 of the Evidence Act. Appellant’s Defence 31.The Appellant in his defence before the trial court testified that he fetches water and heard the prosecution’s case. He denied being related to the prosecution’s witnesses (I believe, PW2 and the victim). He stated that he was at work fetching water and at 6pm, 5 jerricans were yet ... and when he went to collect the jerricans, the chief Mulinge came with two motor bikes and he was taken to the police station. He denied defiling any child and sought to be released to go and do his work. 32.I have keenly and carefully perused the trial court’s record and I am unable to come across where the Appellant requested for probono legal representation or made any other plea and the same was declined by the trial court. The Appellant readily tendered his defence and did not inform the trial court whether he was not aware of what is meant by being placed on defence. I am not therefore persuaded that this case is one fit for retrial. 33.That is why I find that the evidence tendered by the prosecution on the overall was really overwhelming and the Respondent is correct to state that the evidence tendered proved beyond doubt that the Appellant committed the offence of defilement as charged. This court further finds that the trial court evaluated the evidence well and came to the right conclusion. The Appellant was guilty as charged. Whether the sentence should be reviewed 34.The Appellant was sentenced to serve life imprisonment on 12th May 2025. The proceedings on mitigation are missing from the trial court's record; I am therefore not able to confirm what the Appellant said in mitigation. 35.In Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023, the Supreme Court of Kenya held that the minimum sentences in the Sexual Offences Act were constitutional and the courts are bound by the minimum mandatory sentences as provided for by law. Looking at the circumstances of this case, the sentence was legal and proper as prescribed by law. 36.On sentence, although the Appellant contends that the sentence was harsh, I am guided by the SC Petition No. E018 of 2023 (supra) and I really do not find any other sentence that could be meted out in the circumstances. The minor victim was aged 5 years old which is really a tender age. The law (Section 8(2) of Sexual Offences Act) provides for life sentence for the sort of offence the Appellant was charged with. Looking at the seriousness of the offence and the manner in which it was done, I find that the Appellant really did not deserve any other sentence because children of tender years need protection particularly from sexual predators like him notwithstanding his claim that he was not accorded legal representation. Disposition 37.In the end I find no merit in this appeal. The same is disallowed. Both the conviction and sentence for the aforesaid reasons are upheld. 38.Right of appeal 14 days. 39.Orders accordingly. The file is closed. JUDGMENT DATED & SIGNED AT MACHAKOS THIS 14TH JULY 2026NOEL ADAGIJUDGEDELIVERED AT MACHAKOS VIA TEAMS THIS 14TH DAY OF JULY 2026In the presence of:Appellant in person at Kamiti maximum PrisonMs. Agatha Abang for StateMilly Grace -Court Assistant