https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11399

Muriranja v Director of Public Prosecution (Criminal Appeal E072 of 2022) [2026] KEHC 11399 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11399 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E072 of 2022 S Mbungi, J July 24, 2026 Between John Chege Muriranja Appellant and Director of Public Prosecution Respondent (Being an appeal against the conviction by Hon. S.K Nyaga – SRM on 28th October 2022 and sentence passed by Hon. P. Maina – CM on 15th November 2022 in Murang’a SO Case No. E031 of 2021) Judgment 1.The appellant herein 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 of the offence were that on the 26th day of December 2021 at [Particulars Withheld] in Kahuro sub-county within Murang’a County, the appellant intentionally caused his penis to penetrate the anus of P.K.W. a child aged 9 years. 2.He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge were that on the 26th day of December 2021 at [Particulars Withheld] in Kahuro subcounty within Murang’a County, the appellant intentionally touched the anus of P.K.W, a child aged 9 years with his penis. 3.The appellant pleaded not guilty to all the charges and the matter proceeded to full trial. The prosecution called 4 witnesses in support of its case. Facts at trial 4.PW1 was TW, the victim’s mother. She stated that PKW was nine years old and produced his birth certificate which showed he was born on 4th January 2012. He testified that on 25th December 2021, PK left home and did not return for lunch as expected. That she tried to find him and kept looking till 7pm, whereupon she was informed by one Mburu that he had been at his place but he did not know where he was. She testified that she went to Mburu’s home after church, where he found PK playing with other children. That upon seeing her, he ran away to the maize field. That he did not come back home, prompting her to go and look for him at 8pm amongst the other children. She went to the accused’s house where she found PK, the accused and his friend. That she disciplined PK, who then informed him that he slept in the accused’s house and that the accused did ‘tabia mbaya’ in his anus. That the accused removed both his and the victim’s trouser and penetrated the anus of the complainant. That she called the accused via phone and inquired over the allegations, and that he came with a stick to beat PW2, whom he said was lying. That she proceeded to report the matter to the chief and thereafter took PW2 to hospital. On cross-examination, she stated that PW2 did not sleep at home as he knew that his mother wanted to discipline him. 5.PW2 was PKW, the complainant. After conducting voire dire examination, he testified under oath in court and stated that on 25.12.2021, he went to the accused’s home in the evening to borrow a biro pen, which the accused gave to him and he spent the night at his house, because he was afraid his mother would discipline him. That he slept on one sofa and the accused slept on another sofa. He stated that in the morning thereafter, the accused gave him tea and bread and he went out to play. That her mother found her in the accused’s house and inquired what he had done to him. That he informed PW1 that the accused made him bend over, inserted something that felt like a ‘needle’ in his anus, and he felt pain. That the accused removed PW2‘s trouser and shirt, and moved his boxer. He stated that he was in a bent position, and that he told the accused to stop but he did not. That the accused threatened to kill him if he told anyone. That upon being asked by his mother, the accused went to their home and held his hand and pressed his thumb but did not say anything since PW1 was present. That they went and reported the matter at Kahuro Police Station. On cross examination, he stated that the accused person had not done the act by the time he went to play. 6.PW3 was Peter Mbogo, the deputy clinical officer at Muriranjas Hospital. He stated that PW2 was brought to hospital on 27.12.2021 on account of being sodomized by a person well known to him on the eve of 25.12.2021 and 26.12.2021. That the medical examination showed that there were bruises in PW2’s genital area, including the anal area. There was laceration indicating recent penetration in the anal canal, with foul smelling discharge and no spermatozoa. He produced a P3 form that was filed on 28.12.2021, together with the treatment notes in court. 7.PW4 was No. 247971 PC Dorcas Muchiri, the Investigating Officer from Kahuro Police Station. She testified that on 27.12.2021, PW1 came to the station, accompanied by PW2 and reported that PW2 had been defiled by a person known to him. That the matter was reported to the chief and PW2 was later taken to the hospital where the doctor confirmed that he had been sodomized. She recorded their statements and went to apprehend the accused in the company of two officers and the chief. That PW1 positively identified the accused. Upon entering his house, they saw the two couches that the appellant and PW2 slept on and the blanket was still there. On cross examination, she stated that the accused was not taken to hospital since the victim had taken a bath and no swab had been collected from him. That marked the close of the prosecution case. 8.The trial court considered the evidence adduced and found that the prosecution had established a prima facie case against the accused and accordingly placed him on his defence. Defence Case 9.DW1 was John Chege Muriranjas, the accused. He gave sworn evidence and testified that on 22.12.2021, he went to the complainant’s home to get manure at an agreed price of Kshs. 300/- to which he paid Kshs. 200/- and was to clear the balance later on. That he went to PW1’s home on 25.12.2021 to give her the balance but did not find her, and that at about 7.30 p.m., PW1 sent the complainant to collect the balance of Kshs. 100/-. The appellant further testified that on 26th December 2021, between 7.00 p.m. and 8.00 p.m., the complainant went to his house asking for salt, and that PW1 arrived while he was looking for where to put the salt to give him. That PW1 forcefully pulled the complainant away and, about thirty minutes later, called him on phone. That upon arrival at her home, she alleged that the complainant had said that he had done ‘tabia mbaya’ to him. That he suggested that they go to the chief, but PW1 declined. That on 27.12.2021, he went for casual work and returned home at about 4.00 p.m. At about 5.00 p.m., the sub-chief and three police officers went to his home, arrested him and took him to the police station. 10.Upon considering the evidence adduced at the trial court, the trial magistrate convicted and sentenced the accused to life imprisonment. 11.Having been dissatisfied by the decision of the trial court, the appellant lodged the present appeal vide a petition of appeal dated 16th November 2022, citing the following grounds of appeal;a.That, the honorable trial magistrate erred in law and in fact in convicting and sentencing the appellant when the evidence adduced was scanty and/or in sufficient thereby arriving at a wrong and improper decision.b.That the honorable trial magistrate erred in law and in fact in convicting and sentencing the appellant when the evidence adduced was actually contradictory, misplaced and unjust thereby arriving at an improper, unjust and uninformed decision and judgement.c.That the honorable trial magistrate erred in law and in fact in arriving at an improper, unlawful and illegal decision on facts and information that did not support comprehensively the evidence to necessitate a conviction upon the appellant thus fully improper and wrongful and in decision making.d.That the honorable trial magistrate erred in law and in fact in disregarding pertinent information of facts and evidence which were not appropriately adduced for corroboration and disregarding the appellants facts and statements.e.That the honorable trial magistrate erred in law and in fact in admitting and entertaining exaggerated and extraneous unjust information and evidence which was not exhibited appropriately in support through key documents necessitating a miscarriage of justice.f.That the honorable trial magistrate erred in fact in sentencing me to the minimum mandatory sentence without appreciating the decisions of G. V. Odungaj in petition no 15 and 16 of 2015, consolidated and in J. Mativo In Constitutional & Judicial Review Division Petition No. 97 OF 2021.g.That more grounds to be adduced during the hearing of this appeal. 12.Consequently, the appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. 13.The appeal was canvassed by way of written submissions. On record are submissions dated 14th November 2025 filed by the appellant, and submissions dated 22nd January 2026, filed by the respondent; both of which this court has carefully considered. Appellant’s submissions 14.The appellant submitted that he was framed and that the case against him was fabricated. He contended that PW1 intimidated and beat the complainant into making the allegations, and that the evidence of PW1 and PW2 was contradictory as to where the complainant was found, why he had run away, and the circumstances under which the allegation of defilement arose. He relied on Eliud Waweru v Republic [2019] eKLR and Sawe v Republic [2003] eKLR, and submitted that suspicion, however strong, could not form the basis of a conviction. 15.The appellant further submitted that the essential ingredients of the offence of defilement were not proved beyond reasonable doubt. That the medical evidence did not conclusively establish the cause or means of penetration, and that the complainant’s evidence did not sufficiently support the findings made by the clinical officer. 16.It was also the appellant’s submission that the prosecution evidence was inconsistent and insufficient. That the complainant stated that he felt something like a needle, and not a penis inserted into his anus, and that the clinical officer did not indicate the specific cause of the injuries. He further contended that PW3 introduced matters which had not been stated by the complainant, including allegations that the incident had occurred before, thereby rendering the prosecution case doubtful. 17.The appellant averred that his defence was not properly considered. He maintained that he gave sworn evidence explaining that he had a manure transaction with PW1 and that the complainant had merely gone to his house to ask for salt. He contended that the trial court rejected his defence without giving cogent reasons and thereby shifted the burden of proof to him. In support thereof, he relied on Republic v David Ruo Nyambura & 4 Others [2001] eKLR for the proposition that no burden rests upon an accused person to establish his defence. He prayed that the appeal be allowed, the conviction quashed and the sentence set aside Respondent submissions. 18.It was the respondent’s submission that the three essential ingredients of defilement were duly proved. On age, the respondent submitted that the complainant’s birth certificate was produced in evidence and showed that he was born on 4th January 2012, making him nine years old at the time of the offence. 19.On penetration, the respondent relied on section 2(1) of the Sexual Offences Act and submitted that the complainant gave a clear account of how the appellant penetrated his anus after removing his clothes. The respondent further submitted that the complainant’s evidence was corroborated by PW3, the clinical officer, who testified that the complainant had foul-smelling discharge and a laceration of the anal canal, indicating recent penetration. 20.On identification, the respondent submitted that the appellant was well known to the complainant and that PW1 found the complainant in the appellant’s house. It was therefore submitted that the identity of the perpetrator was not in doubt. 21.Regarding the alleged inconsistencies in the prosecution evidence, the respondent submitted that the complainant’s account was coherent, credible and consistent. Reliance was placed on Erick Onyango Ondeng’ v Republic [2014] eKLR and Ndolo Musyoki v Republic [2022] eKLR for the proposition that minor contradictions which do not affect the substance of the case are not fatal. 22.On the appellant’s defence, the respondent submitted that the trial court considered the same and properly rejected it. It was argued that the appellant’s defence was an afterthought, as he did not raise the alleged manure transaction or salt issue with the prosecution witnesses during cross-examination, nor did he call any witness to support his version of events. The respondent prayed for the court to uphold both the conviction and the sentence imposed by the trial court. Analysis and Determination 23.This being the first appellate court, it is guided by principles set out by the court of appeal in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the court stated as follows:“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 24.Having considered the grounds of appeal, the rival submissions by the parties and the lower court proceedings, I isolate the following issues for determination:i.Whether the prosecution proved the offence of defilement beyond reasonable doubt;ii.Whether the alleged contradictions and the appellant’s defence raised reasonable doubt in the prosecution case; andiii.Whether the sentence imposed was lawful Issue I: Whether the prosecution proved the offence of defilement beyond reasonable doubt 25.The appellant was charged with defilement contrary to section 8(1) as read with section 8(2) 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.”Section 8(2) further provides that“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.”Under section 2 of the same Act, ‘penetration’ means the partial or complete insertion of the genital organs of a person into the genital organs of another person, while genital organs includes the whole or part of male or female genital organs and for purposes of this case includes the anus.” 26.The offence of defilement is therefore proved where the prosecution establishes, beyond reasonable doubt, the age of the complainant, penetration, and the positive identification of the perpetrator. This position has been restated in recent decisions. (See Kiptoo v Republic [2025] KEHC 10733 (KLR) and Anganya v Republic [2025] KEHC 9363 (KLR).) 27.On age, the complainant, PW2, was said to have been nine years old at the time of the offence. PW1, his mother, produced the complainant’s birth certificate showing that he was born on 4th January 2012. The offence was alleged to have occurred on 26th December 2021. The complainant was therefore below the age of eleven years, thus placing the charge squarely within the ambit of section 8(2) of the SOA. The appellant did not seriously dislodge the evidence on age. The production of the birth certificate was cogent evidence of age. I am therefore satisfied that the first ingredient of the offence was proved beyond reasonable doubt. 28.On penetration, PW2 testified that he spent the night at the appellant’s house because he feared being disciplined by his mother. He stated that the appellant made him bend over, removed his trouser, shirt and moved his boxer, inserted something that felt like a needle into his anus and that he felt pain. He further testified that he told the appellant to stop but he did not, and that the appellant threatened to kill him if he disclosed the incident. 29.The appellant submitted that PW2 stated that he felt something like a needle, and not a penis, and therefore penetration by a penis was not proved. I do not agree. PW2 was a child of nine years. His description of what he felt as something like a ‘needle’ must be understood in the context of his age, his vocabulary and the traumatic nature of the incident. A child of tender years is not expected to give the anatomical precision of an adult witness. What is material is whether the evidence, taken as a whole, established penetration within the meaning of the Sexual Offences Act. 30.PW3, the clinical officer, examined PW2 on 27th December 2021. His evidence was that PW2 had bruises in the genital area, including the anal area, laceration indicating recent penetration of the anal canal and foul-smelling discharge. He produced the P3 form and treatment notes. To me, this medical evidence materially supported the complainant’s account that his anus had been penetrated. 31.On identification, PW2 expressly named the appellant as the person who defiled him. The appellant was not a stranger to him. PW2 had gone to the appellant’s house. The appellant gave him a biro pen and he spent the night in the appellant’s house. PW1 also found the complainant at the appellant’s house and later received the first report from the child. 32.Further, the appellant’s own sworn defence placed the complainant at his house on 25th and 26th December 2021. He testified that PW1 had sent the complainant to collect Kshs. 100/- and that, on the following day, the complainant went to his house asking for salt. The appellant therefore admitted prior interaction with the complainant during the material period. The only dispute was whether he committed the offence. In those circumstances, the issue was not one of mistaken identity but recognition by a child who knew the appellant. I am satisfied that the appellant was positively identified as the perpetrator. The third ingredient was therefore proved beyond reasonable doubt. Issue II: Whether the alleged contradictions and the appellant’s defence raised reasonable doubt 33.The appellant’s challenge to the conviction was that the prosecution case was fabricated, contradictory and insufficient. He averred that PW1 beat and intimidated the complainant into making the allegation and that the complainant disclosed the incident only after being disciplined. 34.I have considered that argument carefully. It is clear from the record that PW1 disciplined the complainant after he had stayed away from home. The fact that the disclosure was made after the mother demanded an explanation does not render the disclosure false. The complainant explained that the appellant had threatened to kill him if he told anyone. In cases involving children and sexual offences, delayed or reluctant disclosure is not uncommon. What the court must examine is whether the disclosure was consistent with other evidence on record. 35.In the present case, the complainant’s disclosure was followed by a report to the chief, a report to the police and a medical examination. The medical findings were consistent with recent anal penetration. PW4, the investigating officer, also visited the appellant’s house and observed the two couches and blanket, which corresponded with PW2’s evidence that he and the appellant slept on separate sofas. To me, these circumstances lend support to the complainant’s account. 36.The appellant also pointed to alleged contradictions between PW1 and PW2 as to where the child was found, whether PW1 called the appellant by phone, and whether the complainant ran away because he feared being punished. These matters, in my view, do not go to the root of the charge. The central question was whether PW2 was defiled and whether the appellant was the perpetrator. On those core matters, the complainant’s evidence was materially consistent and was supported by the medical evidence. 37.The Court of Appeal in Erick Onyango Ondeng’ v Republic [2014] eKLR, citing Twehangane Alfred v Uganda, stated that not every contradiction warrants rejection of evidence, and that minor contradictions may be ignored unless they point to deliberate untruthfulness or affect the substance of the prosecution case. The same principle was applied in Ndolo Musyoki v Republic [2022] eKLR and restated in recent decisions such as OKK v Republic [2024] KEHC 11313 (KLR), where the court held that unless inconsistencies are so grave as to create doubt on the overall assessment of the evidence, minor discrepancies are not fatal. 38.I also note that the complainant was a child witness. The trial court conducted voire dire examination and thereafter received his evidence on oath. In sexual offences, the law does not require corroboration as an inflexible rule where the court believes the complainant and records reasons for that belief. The proviso to section 124 of the Evidence Act provides that where, in a criminal case involving a sexual offence, the only evidence is that of the alleged victim:“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.” 39.In this case, the complainant’s evidence was not unsupported. It was corroborated by the evidence of PW1, who received the first report. PW3 confirmed anal injuries consistent with recent penetration and PW4 investigated the complaint, visited the appellant’s house and found the two sofas and blanket, consistent with the statement by the victim. The Court of Appeal in Wamalwa v Republic [2024] KECA 742 (KLR) restated the essence of section 124 of the Evidence Act, namely that a court may convict on the evidence of the complainant alone in sexual offences where it records reasons for believing the complainant. Here, the evidential position was even stronger because there was corroborative medical and circumstantial evidence. 40.The appellant also argued that a crucial witness, namely the friend allegedly found in his house, was not called. Section 143 of the Evidence Act provides that :“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” The prosecution is not required to call a superfluity of witnesses if the evidence called is sufficient to prove the charge. 41.I have also considered the appellant’s complaint that PW3 introduced matters which the complainant had not stated, including that the incident had occurred before. That evidence was not central to the trial court’s finding. The conviction was grounded on the incident of 26th December 2021, the complainant’s direct evidence, the first report and the medical findings. Even if the alleged previous conduct is disregarded, the remaining evidence is sufficient to sustain the conviction. 42.The appellant further contended that his defence was not considered and that the burden of proof was shifted to him. Article 25(c) of the Constitution protects the right to a fair trial as one of the rights that shall not be limited. Article 50(2) provides that:“Every accused person has the right to a fair trial, which includes the right—(a)to be presumed innocent until the contrary is proved; …(k)to adduce and challenge evidence.” 43.The burden of proof in a criminal trial always rests on the prosecution and never shifts to the accused person. The appellant was therefore under no duty to prove his innocence. The duty of the trial court was to consider whether his defence, when weighed against the totality of the prosecution evidence, raised a reasonable doubt. 44.In his sworn defence, the appellant stated that he had bought manure from PW1 at Kshs. 300/-, paid Kshs. 200/- and later attempted to pay the balance. He further stated that the complainant went to his house to ask for salt and that PW1 arrived and forcefully pulled him away. He denied the offence and suggested that the case was a fabrication. 45.I have re-evaluated that defence against the prosecution evidence. First, the alleged manure and salt transaction was not put with any clarity to PW1 or PW2 during cross-examination. Secondly, the appellant’s defence does not explain why the complainant, a child of nine years, would give a detailed account implicating him in anal penetration and why the same would be supported by medical findings of recent anal penetration. Thirdly, the appellant’s own evidence placed the complainant at his house during the material period, thereby confirming opportunity and proximity. 46.The defence also alleged fabrication, but no credible basis was laid for that allegation. The alleged dispute over manure worth Kshs. 100/- was too tenuous, on the evidence before the court, to explain a fabricated charge of defilement, a police report, hospital examination and medical findings of recent penetration. There is no explanation whatsoever as to why PW2 would frame the appellant. The medical evidence adduced also showed that the complainant was defiled. I therefore find that the trial court did not shift the burden of proof to the appellant. The court considered his defence but found it insufficient to displace the prosecution evidence. 47.The appellant’s reliance on suspicion is also misplaced since this conviction was founded on the complainant’s direct evidence, the first report, the medical evidence, the recovery of the scene details by the investigating officer. Accordingly, I find that the alleged contradictions were minor and did not affect the substance of the prosecution case and that the appellant’s defence did not raise reasonable doubt. Issue III: Whether the sentence imposed was lawful 48.On sentence, the appellant challenged the sentence of life imprisonment and argued that the trial court imposed a mandatory sentence without appreciating authorities on mandatory sentencing. He referred the court to the decision of G.V Odunga J in Petition 15 and 16 of 2015 and the decision by Hon. Mativo J in Constitutional & Judicial Review Petition No 97 of 2021. The respondent prayed for this court to uphold both conviction and sentence. 49.Sentencing is an exercise of judicial discretion. An appellate court will only interfere with sentence where it is shown that the trial court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor, or imposed a sentence that is manifestly excessive or illegal. 50.The complainant was nine years old. Section 8(2) of the Sexual Offences Act provides that 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. The sentence imposed by the trial court was therefore the sentence prescribed for the offence once proved. 51.I have considered the appellant’s reliance on decisions concerning mandatory sentences. However, the binding legal position after the Supreme Court directions in Muruatetu and the subsequent Supreme Court decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) is that a court exercising ordinary appellate jurisdiction should be cautious not to convert a criminal appeal into a constitutional petition on the validity of statutory sentences. 52.Further, in Wanjala v Republic [2024] KECA 1119 (KLR), the Court of Appeal, while dealing with section 8(2) of the Sexual Offences Act, observed that the section provides for a mandatory sentence of imprisonment for life where the child violated is aged eleven years or less, and that, in light of the Supreme Court decision in Gichuki Mwangi, the question of constitutionality of the indeterminate sentence was not open for consideration at that stage. 53.In the present case, no constitutional petition was before the trial court, and none is before this court. The appellant’s challenge was raised as a ground of appeal against sentence. In the circumstances, and in view of the age of the complainant and the nature of the offence, I find no legal basis for interfering with the sentence imposed. 54.The sentence imposed was not only lawful, but proportionate to the seriousness of the offence, the age of the complainant and the statutory framework under section 8(2) of the Sexual Offences Act. I therefore find that the appeal on sentence lacks merit. Disposition 55.Consequently, the appeal is dismissed. 56.The conviction and sentence upheld by the trial court is upheld. 57.Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 24TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/Velma