https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9779

Muriu v Republic (Criminal Appeal E007 of 2025) [2026] KEHC 9779 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9779 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E007 of 2025 SC Chirchir, J June 25, 2026 Between Arnest Mwangi Muriu Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. M.K Mutegi (SPM) in Kangema chief Magistrate’s court Sexual Offence Case No. E007 of 2024 delivered on 9th January, 2025) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. (The Act). The particulars of the charge were that on 23rdApril 2024 at [Particulars Withheld] village,Kanjahi sub-location, Ngutu location,Mathioya sub-county within Murang’a County, the Appellant intentionally caused his penis to penetrate the anus of L.M, a child aged 6 years. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Act. He denied the charges. After a full trial, he was convicted of the main charge and sentenced to a life time in prison. 2.He was dissatisfied with the outcome, and filed this appeal. He has raised several grounds which are consolidated and paraphrased as follows:1.That the learned trial Magistrate erred in law and fact in ignoring a cardinal principal in criminal law that the burden of proof lies on the prosecution and every element of the offence must be proved beyond reasonable doubt.2.That the learned trial Magistrate erred by convicting on flimsy, inconsistent, suspicious, fictitious evidence .3.That the learned trial Magistrate erred in law by failing to observe that there was no substantive investigations thereby basing the conviction on mere allegations and fabrication.4.That the Appellant was not afforded the services of an advocate at the onset of his trial thus compromising his right to fair trial as provided for in Article 50(2)(g) and (h).5.That the learned trial Magistrate erred in law and fact by passing sentence without considering the time spent in remand as elucidated under section 333 (2) of the Criminal procedure code.6.That the learned trial Magistrate erred in law and fact by not calling for pre-sentencing report as required for by the Judiciary Sentencing Policy Guidelines 2023.7.That the learned trial Magistrate erred in law and fact by meting out a minimum mandatory sentence without considering the Appellant plausible mitigation thereby contravening Article 50 (2) (q) of the Constitution. 3.The Appeal was heard by way of written submissions. Appellant’s Submissions 4.The Appellant contends that his conviction was fundamentally flawed and the resulting sentence of life imprisonment was both illegal and excessive; that the prosecution failed to discharge its burden of proof to the required standard. 5.Regarding the legality of the charge, the Appellant submits that the trial court erred in convicting him on a defective and unlawful charge sheet. He argues that the charge, framed under Section 8(1) as read with Section 8(3) of the Sexual Offences Act, was ambiguous and failed to clearly state the essential elements of the offence, thereby violating his right to a fair trial under Article 50(2)(b) of the Constitution. To buttress this submission , he has relied on the decision in Yongo v Republic, (1983)eKLR, where the Court held:“A charge is defective if it does not clearly state the essential elements of the offence, and such a defect is not curable under Section 382 CPC. 6.The Appellant further submits that the conviction was unsafe as it was based on inconsistent, contradictory, and uncorroborated testimonies. He cites between the contradiction medical findings of PW5 and the narrative provided by the other witnesses, suggesting that the injuries noted were not exclusive to penetration. 7.He further challenges the reliability of the identification, asserting it was based on mere suspicion and hearsay. In this regard, he cites the case of Ndungu Kimani v Republic (1979) eKLR, where the Court of Appeal held:“The evidence in the prosecution case must be consistent and credible, and any significant contradictions or lack of corroboration may render a conviction unsafe.”(sic) 8.The Appellant further faults the trial Magistrate for failing to observe mandatory procedural safeguards for vulnerable witnesses. He submits that the evidence of the minor and the intermediary (PW1) was improperly admitted without a proper voir dire examination to assess the child’s competence and understanding of the truth. He relies on the principle in Kibangeny Arap Koit v R (1959), where the court emphasized:“That voir dire is mandatory, particularly for vulnerable witnesses, to protect their rights and ensure the evidence is competent.” 9.It is further submitted that the trial court failed to adequately consider the Appellant’s sworn defense. He contends that by ignoring his explanation regarding a possible family dispute as a motive for false accusation, the court shifted the burden of proof to him. 10.The Appellant argues that his constitutional right to legal representation under Article 50(2)(g) and (h) was violated. He asserts that as an illiterate and indigent person facing a capital charge, the court had a non-derogable duty to inform him of his right to state-funded legal aid. 11.Finally, on sentencing, the Appellant submits that the sentence of life imprisonment was harsh, excessive, and disproportionate. He argues that the trial court misdirected itself by failing to exercise judicial discretion or consider mitigating factors such as his status as a first-time offender and the time spent in remand. 12.The Appellant thus prays that this Honourable Court allows his appeal, quashes the conviction, and sets aside the sentence. Respondent’s Submissions. 13.The Respondent, maintains that the prosecution successfully discharged its burden of proof to the required standard and that the conviction was entirely safe. It is submitted that the evidence against the Appellant was overwhelming, consistent, and corroborated across all key legal requirements; that the three mandatory elements; the age of the victim, the fact of penetration, and the positive identification of the perpetrator, were all proved. 14.Regarding the age of the victim, the Respondent points to the testimony of the complainant’s mother (PW3) and the birth notification produced as an exhibit, which confirmed the child was born on 28th January 2018 and was thus six years old at the time of the offence. 15.On penetration, the Respondent relies on the evidence of PW1, PW2, and particularly the medical testimony of PW5. It is argued that the Senior Clinical Officer’s finding of introverted anal lacerations provided clear, objective evidence of external penetration that remained unrebutted during the trial. 16.On identification, the Respondent contends that this was a classic case of recognition rather than identification of a stranger; that the Appellant was a neighbor well-known to the victim and the grandmother (PW2). That this drastically reduced the possibility of mistaken identity. To support this position, the Respondent cites MW v Republic (2019)eKLR, where it was stated:“The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity.” 17.The Respondent submits that the investigations were thorough and that all necessary witnesses were called to testify. 18.On the issue of legal representation, the Respondent argues that there is no statutory obligation for the court to appoint an advocate for an adult accused person, and the Appellant had the responsibility to secure his own counsel if he so desired. On presentencing report, the respondent maintains that the failure to call for a pre-sentencing report does not invalidate the proceedings, as such reports are merely advisory. 19.Finally, on sentencing, the Respondent submits that the trial court’s hands were tied by the mandatory provisions of Section 8(3) (sic) of the Sexual Offences Act, which prescribes a minimum sentence of life imprisonment for the defilement of a child under eleven years. The Respondent argues that while the Muruatetu decision allowed for discretion in murder cases, the mandatory sentences for sexual offences remain intact. It is further submitted that the Appellant’s lack of remorse and his previous criminal record for kidnapping further justified the severity of the sentence. 20.The Respondent concludes by urging the Court to find that the Appellant has failed to provide sufficient grounds to warrant an interference with the trial court's decision, and prays that the appeal be dismissed in its entirety. 21.PW1, was a Social Worker attached to Kangema Sub-County Hospital. she was appointed by the court as an intermediary for the minor victim, when the court observed that the complainant was timid and could not coherently present his testimony. 22.She stated that she interviewed the child at the hospital, following the incident, to facilitate his disclosure. During this interview, the victim narrated that on the material day the Appellant took the victim outside the house, removed his clothes, and laid him on a chair. The victim recounted that the Appellant then removed his own clothes and inserted his penis (referred to by the child as “kasusu”) into the child's anus. To prevent the child from raised an alarm or making any noise during the act, the Appellant cupped his hand over the victim’s mouth. PW1 told the court that the child reported being in such significant pain afterward that he was unable to sit down when his grandmother tried to bathe him. 23.Upon discovery of the incident, the complainant’s grandmother reported the matter to the police and the children’s home administrator. 24.Under cross-examination, she testified that the child had nothing to benefit out of lying. 25.PW2, was the child’s grandmother. She testified that on 23rd April 2024, at about 7:00pm, she arrived home with the complainant. On arrival they found someone outside her house. The visitor told pw2 that he was looking for work, and he was informed that there was no work. She entered the house and left the Appellant outside playing with the victim. Shortly thereafter she called the complainant for a bath, thereupon which the Appellant excused himself and left. She further stated that the child told her he could not sit down as he was in pain. He further told her that the Appellant removed his clothes, and inserted his “kasusu” into the child's anus. She checked the child’s anus and observed that it had blood stain. She reported the incident at Gitugi Police Station and later took the child to Nyakianga Hospital for medical examination. 26.Under cross-examination, she maintained that she had seen the Appellant on the day of the offence and denied that the accusations were fabricated. 27.PW3, was the mother of the child. She told the court that she was informed of the incident via a phone call from her mother (PW2) at approximately 5:00 am on 24th April 2024. Upon receiving the report, she traveled to Gitugi and later joined the child at the hospital. 28.She testified that her son narrated the ordeal to her. She produced the child's birth notification (No. 7035575), which was admitted as exhibit 1. Under cross-examination, she stated that her son identified the Appellant when he was arrested. 29.PW4, was PC Sitienei, attached to Gitugi Police Station. He told the court that he was the arresting officer, and investigating officer in the case. He told the court that on 24th April 2024, while on duty at the report office, he was assigned a case of defilement involving a minor He proceeded to record statements from the witnesses and issued victim of defilement. He issued them with a P3 form to facilitate the child's medical examination. He further stated that later that evening, he received a phone call from the complainant (PW2) informing him that the Appellant was at his home. He went to the location, arrested the Appellant, and escorted him to Gitugi Police Station. 30.In his testimony, he produced the child’s birth notification as exhibit 1. Under cross-examination, he confirmed that he arrested the Appellant at his residence and admitted that no independent forensic or scene-of-crime investigations were conducted at the premises where the offence was alleged to have taken place. 31.PW5, was a Senior Clinical Officer at Murang’a County Referral Hospital. He examined the minor on 23rd April 2024 at Nyakianga Hospital. He observed that the victim was experiencing significant pain and had difficulty with sitting and squatting. Upon examination of the anal canal, he saw introverted anal lacerations, which he testified were consistent with penetration by an object inserted from the outside towards the inner part of the anus.He further testified that while no discharge was present, the presence of these specific lacerations led him to conclude there was clear evidence of penetration. He produced the victim’s treatment notes and the P3 form as exhibits 1 and 2, respectively. Defence case 32.The Appellant, gave a sworn defense and did not call any witness. He denied the allegations and testified that on the day of the alleged incident, he had simply gone to the neighbor’s home to collect money which he was not given. That he was informed to collect on Friday, where he was then arrested and didn’t know why he was in court. Analysis and determination 32.This being a first appeal, this Court is under a duty to re view the evidence, re- evaluate and arrive at its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This was succinctly laid out in the case of Okeno v Republic [1972] EA 32 ) 33.I have considered the record of appeal, the grounds of appeal and the submissions by the parties, and the following issues lend themselves for determination:a).Whether the charge sheet was defectiveb).Whether the Appellant’s right to fair trial was infringed.c).Whether the prosecution proved the offence of defilement beyond reasonable doubt;d).Whether the sentence imposed was lawful and proper. Whether there were defects in the charge sheet 34.The Appellant contended that the charge sheet was defective. 35.He was charged under section 8(1) as read with Section 8(3) of the Act. The child herein was 6 years and therefore the charge sheet should have read subsection (1) and subsection (2) of section 8 and not subsection 3 of section 8. 36.Section 134 of the Criminal Procedure Code requires a charge sheet to contain such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. Further a charge sheet is defective only where it fails to accord an accused person sufficient notice of the offence facing him, and thereby resulting in prejudice. ( see: Sigilani v Republic [2004] 2 KLR 480). 37.Although the charge sheet cited Section 8(3) of the Act, the particulars clearly disclosed an offence involving a six-year-old child. The charge sheet disclosed the offence, cited the applicable statutory provisions, (save for the small error identified as aforesaid) and specified the date, place and particulars of the offence. The Appellant fully participated in the proceedings and cross-examined the witnesses. He was eventually sentenced under the correct section of the offence. 38.The Appellant has not pointed out what prejudice he suffered and indeed the court has not found any prejudice that was occasioned as a result of what I consider to be a clerical error. In any event such a defect was curable under Section 382 of the Criminal Procedure Code. Whether there was an infringement of the right to legal representation 39.The Appellant further contended that his right under Article 50(2)(g) and (h) of the Constitution was violated. 40.Article 50(2)(g) guarantees an Accused person the right of to choose and be represented by an advocate and to be informed of that right, promptly. 41.The record shows that the Appellant was informed of his right to legal representation, just before he responded to the charge. (paragraph 2 at page 3 of the Record of Appeal). The trial court therefore fully complied with the Article 50(2)( g) of the constitution. Therefore, this complaint is devoid of merit. 42.Article 50(2)(h) of the constitution, provides for legal representation at State’s expense where substantial injustice would otherwise result. In regard to this particular Article of the constitution, courts have repeatedly pointed out that the right is a qualified one, and the qualifications is “if substantial injustice would otherwise result”. 43.whereas the Constitution does not define” Substantial injustice”, the Legal Aid Act under Section 43 (1A) sets out circumstances which would constitute substantial injustice. The Section provides:“In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration:(a)the severity of the charge and sentence;(b)the complexity of the case; and(c)the capacity of the accused to defend themselves 44.Further in Karisa Chengo & 2 Others. Cr. Nos. 44, 45 & 76 of 2014, , the Court of Appeal held; “... However, substantial injustice only arises in situation where a person is charged with an offence whose penalty is death and such a person is unable to afford legal representation pursuant to which the trail is compromised in one way or another only that would the state to provide legal representation arise”. 45.The record does not show that the Appellant requested legal representation and was denied the same. Neither does it disclose any substantial injustice occasioned by the absence of counsel within the context of the finding in karisa Chengo’s case (supra). The Appellant actively participated in the proceedings, cross-examined witnesses and tendered a sworn defence. 46.Consequently, this ground of appeal equally fails. Whether the prosecution proved the offence of defilement beyond reasonable doubt; 47.The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. (The latter section erroneously indicated as section 8(3)) . 48.For the prosecution to secure a conviction in an offence of defilement, it must prove the existence of all the three ingredients that constitute defilement, namely; - the age of the victim, proof of penetration and the identity of the perpetrator. ( see: Wamukoya Karani v Republic [2022] KECA 435 (KLR) and Mark Oiruri Mose v Republic [2013] eKLR. Age of the complainant 49.The evidence on record shows that PW3, the complainant’s mother, produced the complainant’s Birth Notification No. 7035575. The document showed that the complainant was born on 28th January 2018. The offence occurred on 23rd April 2024. The complainant was therefore six years old at the time of the offence. 50.The Court is satisfied that the complainant’s age was proved beyond reasonable doubt. Whether penetration was proved 51.Section 2 of the Act defines penetration as “the partial or complete insertion of the genital organs of one person into the genital organs of another person”. 52.PW1 testified through her interaction with the complainant as an intermediary. She stated that the complainant narrated to her how the Appellant removed his clothes and inserted his penis into the complainant’s anus. PW2 and PW3 gave evidence that the complainant made a similar report to them shortly after the incident. 53.The above testimony was corroborated by the testimony of the Clinical Officer( PW5) . Upon examination of the complainant, he observed introverted anal lacerations and signs of trauma in the anal area. His opinion was that the injuries were consistent with penetration by an object from the outside. In Fappyton Mutuku Ngui v Republic [2014] eKLR, the Court held that penetration, however slight is sufficient to satisfy the legal requirement. 54.Upon evaluating this piece of evidence, this Court finds that the complainant’s account was materially corroborated by the medical findings. The injuries observed by PW5 were consistent with the narrative given by the complainant. 55.I therefore find that penetration was proved. Whether the Appellant was positively identified 56.The Appellant challenged his identification as the perpetrator. The evidence on record demonstrates that this was a case of recognition rather than identification of a stranger. 57.PW1 testified that the complainant knew the Appellant as a neighbour. PW2 similarly testified that she saw the Appellant at her homestead on the material day and that he was interacting with the complainant before the incident took place. The complainant consistently named the Appellant as the person who assaulted him. Further the Appellant testified that he did go to the neighbour’s house on that date, seeking for his payment. This affirms the testimony of PW2 and 3 that the victim and the Appellant were neighbours . This was therefore a case of identification through recognition. 58.In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition is more satisfactory, more assuring and more reliable than identification of a stranger because it is based upon personal knowledge of the assailant. 59.The complainant’s account was consistent from the time of disclosure to PW1, PW2 and PW3. The Appellant was known to the complainant and the possibility of mistaken identity was eliminated. I therefore find that the Appellant was positively recognized as the perpetrator. voir dire examination 60.The Appellant argued that the trial court failed to conduct a voir dire examination. 61.The record shows that the court conducted a voir dire examination ( pages 7 to 8 of the record of Appeal) after which after the trial magistrate observed that the child could not express himself and he appeared timid . She declared him a vulnerable witness and appointed Monich Kimani a social worker at Kangema sub- county hospital as a intermediary. 62.Contrary to the Appellant’s submissions the voir dire was adequate for purposes of ascertaining the victim’s ability to testify. The Appellant has not pointed the particular deficit in the voir dire examination, and the court has not found any. Section 31 of the Act lays down the procedure to be followed by the court in assessing the vulnerability of a witness. A perusal of the proceedings show that the court assessed the ability of the victim to testify, declared the victim a vulnerable witness, and went ahead and appointed an intermediary. 63.Further, the Appellant, again, has not pointed which specific part of section 31 of the Act was not complied with apart from making a sweeping statement about non- compliance. This ground of Appeal is unmerited. 64.In conclusion, am satisfied that the prosecution proved the offence of defilement under section 8(1) as read with section 8(2) of the sexual offences Act . The sentence 65.The complainant was six years old. Section 8(2) of the 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”. 66.The Appellant has argued that the prescribed sentence is not mandatory; that his mitigation was not considered and was excessive, harsh and disproportionate. 67.It suffices to state that contrary to the Appellant’s submission, the sentence prescribed under section 8(2) of the Act is indeed mandatory as the wording of the section as cited under paragraph 58 of this judgment demonstrate. The mandatory nature of the provisions of section 8(2) means neither the trial court, nor this court was/ is at liberty to pass any other sentence. This ground of Appeal also fails. 68.The Appellant also complained that the trial court failed to consider the period spent in remand custody as per the requirement of section 333(2) of the Criminal Procedure Code. However in the face of the life sentence, the provisions of section 333(2) became moot 69.In the end , the appeal against conviction is hereby dismissed, and the sentence imposed by the trial court is hereby upheld. DATED SIGNED AND DELIVERED VIRTUALLY AT ISIOLO THIS 25TH DAY OF JUNE 2026.S. CHIRCHIRJUDGEIn the presence of :Roba Katelo- court AssistantThe Appellant.