https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12184

Musau alias Mbutani v Republic (Criminal Appeal E060 of 2025) [2026] KEHC 12184 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12184 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E060 of 2025 MW Mutuku, J July 29, 2026 Between Bosco Musyoki Musau alias Mbutani Appellant and Republic Respondent (Being an appeal against Conviction only in Criminal Case No. S.O E008 of 2024 at Tawa Law Court judgement delivered on 19 th August 2025 by Hon. Stephen Jalang’o SPM) Judgment 1.The Appellant herein, Bosco Musyoki Musau, was convicted after trial of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act, No 3 of 2006. The particulars of the offence are that on the 21st July 2024 at around 1530hrs at [Particulars Withheld] village in Kikiini Sub-location within Makueni County, the appellant intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of TMM a child aged 14 years. 2.The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars are that on 21st July 2024 at around 1530hrs at [Particulars Withheld] village in Kikiini Sub-location within Makueni County, the appellant intentionally and unlawfully did an indecent act to TMM a child aged 14 years by touching her private part namely vagina with his penis. 3.On 19/08/2025, the appellant was convicted on the main count and was sentenced to fifteen (15) years imprisonment. 4.Being dissatisfied with the conviction, he lodged this appeal against only the conviction vide a petition of appeal dated 26th August 2025. The conviction is being challenged on the following grounds;i.That, the Learned Trial Magistrate erred in matters of Law and fact by failing to find that the whole case was marred with material contradictions and inconsistencies.ii.That, the Learned Trial Magistrate erred in law and fact by failing to notice that the essential ingredients/elements of the offence of defilement were not proved beyond reasonable doubt. 5.The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -“….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 Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was some evidence to support 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 finding 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 witnesses, See Peters v Sunday [1958] E.A 424.” 6.A good point to start from would then be a recap of the evidence adduced at the trial court. Prosecution’s case 7.PW1 BMM (mother to the complainant) testified that on 21st August 2024, the uncle to the complainant called her and requested her to send her children to check if the appellant, his employee, had grazed cows. She sent the complainant and her brother to check. 8.It was her evidence that later on only her son came back. He informed her that the appellant had gone to the river with the complainant. She went to the river direction and saw a small calf at the river. 9.It is her evidence that she found the appellant having sex with her child. She called out the appellant. He did not talk to her but rose up and put on his trouser. The complainant was on the ground without her inner wear. She reported the matter at Kali police post. 10.She took the complainant to the hospital for medical examination. She identified the appellant and it was her evidence that the appellant is well known to her. 11.PW2, TMM is the complainant herein. She testified that on the 21st July 2024 her uncle requested them to go check whether the appellant, his employee, had grazed the cows. She went to the home in company of her brother. 12.It is her evidence that they found the appellant at home. The appellant told her brother to go home. The appellant then requested her to accompany him to the river to take the cows and goats. She testified that the appellant closed her mouth, removed her innerwear and placed her on the ground. 13.She stated that the appellant penetrated her vagina with his penis. Her mother found them in the act. The appellant held her mother and warned her not to disclose to anyone what had transpired. They reported the incident to Kali police post. She was taken to Mbooni sub-county hospital for examination. 14.PW3, Victor Mutuva, a senior clinical officer at Mbooni sub-county hospital told the court that on 21st July 2024, he examined the complainant. She gave a history of being defiled by a person well known to her. 15.During examination, the pregnancy test was negative and they did not find any spermatozoa. On genital examination, the hymen was perforated but old. There was a whitish discharge. He produced the P3 form, treatment notes and PRC form as exhibit no. 2, 3 and 4 respectively. 16.PW4, Corporal Joshua Karoki was the investigating officer based in Mbooni police station. He told the court that on 24th July 2024 he arrested the appellant in a case of defilement. He obtained the victim's birth notification. He testified that the complainant was born on 21st August 2009. He produced the birth notification as exhibit no. 1. He identified the appellant d in court. Defence Case. 17.DW1, the appellant, testified under oath. He told the court that on 21st July 2024 he was grazing cows. He asked some children, one boy and two girls to untie goats. According to him, the boy went away with one girl, leaving behind the other girl watching over the goats. He went down to the river to give the cows water. He stated that the father of the girl passed by, without talking to him. 18.He further stated that the mother of the girl confronted him while shouting. She questioned why he had remained with the girl and not the boy. He stated that she took away the girl and beat her up. He finally stated that he was arrested by the police three days after. He denied being found with the complainant. 19.The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. Issues for Determinationi.Whether the prosecution proved its case beyond reasonable doubt.ii.Whether the Prosecution’s case was marred with material contradictions and inconsistencies. Analysis and Determination Whether the prosecution proved its case beyond reasonable doubt 20.It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa V R, (2013) eKLR. 21.The standard of proof required is “proof beyond reasonable doubt”. In reference to this Lord Denning in Miller V Ministry of Pensions, [1947] 2ALL ER 372 stated:“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.” 22.Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;“8Defilement1.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.” 23.Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms:“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.” 24.The crucial elements that need to be proved beyond reasonable doubt for a crime of defilement to be inferred can be drawn from the wording of Section 8 of the sexual offences Act. The prosecution needs to prove beyond reasonable doubt that; -i.There was an act which causes penetration (of the victim’s genital organs by the accused’s genital organs)ii.The age of the victim (must be a child)iii.Positive identification of the accused as the person who committed the act. Penetration 25.Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organ of a person into the genital organs of another person. 26.In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995, the court held: -“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by medical evidence or other evidence.” 27.In the present case, it is the evidence of the victim that the appellant removed her innerwear, placed her on the ground and penetrated her vagina. Her evidence was corroborated by her mother. She testified that she found the appellant having sex with her daughter. 28.Additionally, the clinical officer, PW3, testified that on genital examination, the hymen was perforated but old and that she had a whitish discharge. He produced P3 form, treatment notes and PRC. 29.The medical evidence presented by PW3, corroborated the evidence of the victim and her mother that the appellant had sex with her. The perforated hymen is clear proof of penetration. 30.In the above foregoing, I find that the evidence on record is sufficient to prove the element of penetration. I affirm that penetration was proved beyond reasonable doubt Age of the victim 31.Proof of age is important in a sexual offense. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: -“Age of the victim of 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.” 32.Age can be proved through various ways. The Court of Appeal in the case of Edwin Nyambogo Onsongo v Republic [2016] eKLR, stated as follows:“…. 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.” 33.In the present case, the prosecution’s first witness, the mother of the victim, testified that the victim was born on 21st August 2009. She produced Birth Acknowledgement Note MFI 1 to confirm the same. The complainant also testified that she was 15 years old. 34.Additionally, PW4, the Investigating Officer testified that the victim was born on 21st August 2009 and produced a Birth Notification, EXH. No. 1 to confirm the same. 35.It therefore means, that the victim was 14 years and some months old on the day of the alleged defilement. The evidence as to the age of the complainant is clear and it is not contradictory as the appellant alleged in his written submissions. This court thus agrees with the trial court that the age of the complainant was sufficiently proved beyond reasonable doubt. Positive identification of the assailant 36.The complainant testified that the appellant was the person who had sex with her. He was well known to her. 37.The complainant’s mother corroborated the complainant’s testimony and said that she found the appellant having sex with her daughter and that she knew the appellant very well as he was a worker for her brother. Such recognition, stemming from a prior acquaintance, precluded any prospect of mistaken identity. 38.Additionally, the appellant in his defense, he admitted that he had an encounter with the complainant and her mother on that material day. Therefore, the identification of the appellant could not have been mistaken. 39.It is my view that the identity of the Appellant as the perpetrator of the offence was proved. Whether the Prosecution’s case was marred with material contradictions and inconsistencies 40.The Appellant in his written submissions submitted that the prosecution’s case was marred with material contradictions and inconsistencies. In particular, the appellant submitted that the medical evidence on penetration was inconsistent with the testimonies of the complainant and her mother as there was no spermatozoa found and the hymen was perforated but old. 41.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.” 42.It is therefore, not a requirement in proving penetration that spermatozoa must be present. Due to the fact that the mother of the complainant found them in the act, it is possible that the appellant had not yet ejaculated. 43.The hymen was perforated but old because the complainant and the appellant had had sex previously. 44.The other contradiction that the appellant raised is that the complainant in cross-examination, she stated that she did not know the appellant and that the appellant was not her friend. 45.I have carefully examined each of the inconsistencies raised by the appellant and I find them to be minor and not going to the root of the prosecution's case. 46.The foregoing analysis demonstrates that the prosecution discharged its burden, proving the case beyond reasonable doubt. The elements of penetration, the complainant’s minority, and the appellant’s identity were each established with requisite particularity. 47.Additionally, I find that there were no material contradictions, inconsistencies, or irregularities that would undermine the prosecution's case. 48.Before leaving, I note that the court meted out a sentence of 15 years and directed that the time spent on remand be considered. The sentence imposed on the appellant was 15 years, but it is unlawful. The minimum mandatory sentence provided under section 8(3) of the sexual offences act is a 20 years sentence. 49.The trial court erred in law in sentencing, resulting in a miscarriage of justice. Section 8(3) provides as follows, at the pain of repetition:“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.” 50.The minor was 14 years at the time of the offence. The 15-year sentence imposed on the appellant is unlawful, it cannot stand and it is consequently set aside and replaced with a sentence of 20 years imprisonment. 51.In the circumstances, I make the following orders: 52.The Appeal on conviction lacks merit and is accordingly dismissed. 53.The sentence meted out is unlawful and is therefore set aside and substituted with the only sentence prescribed, that of a 20 years sentence. 54.Right of appeal 14 days. DELIVERED, DATED AND SIGNED ON 29TH DAY OF JULY, 2026.JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKUJUDGE.In the presence of: -Miss Omol for the StateAppellant in personCourt Assistant – Mr. Kibet.