https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11006

Musenya v Republic (Criminal Appeal E011 of 2023) [2026] KEHC 11006 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 11006 (KLR) Republic of Kenya In the High Court at Kajiado Criminal Appeal E011 of 2023 CW Meoli, J July 16, 2026 Between Joseph Wambua Musenya Appellant and Republic Respondent (Being an appeal from conviction and sentence in Kajiado S.O. Case No.E017 of 2020 - L. Gicheha, CM) Judgment 1.Joseph Wambua Musenya, the Appellant herein was charged in the main count with Defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act. (the Act). The particulars being that on 25th May, 2020 at around 1700 hours at [particulars withheld] area, [particulars withheld] sub-county within Kajiado County, he intentionally caused his penis to penetrate the vagina of R.K.K a child aged 9 years. The alternative count was Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2.The Appellant denied the charges but following a full trial, he was found guilty, convicted and sentenced to serve life imprisonment on the main count. Aggrieved by the outcome he filed a petition of appeal which was later amended to introduce the following new grounds of appeal:“1.That, the learned trial magistrate erred both in law and in fact by convicting and sentencing the Appellant to life imprisonment without considering that the medical documents produced in support of the charge were insufficient to sustain the conviction.2.That, the learned trial magistrate erred both in law and in fact by convicting and sentencing the Appellant to life imprisonment without considering that, before and after the Appellant's arrest, an age assessment report indicated that the Appellant was under the age of eighteen (18) years and was therefore a minor at the time of arrest.3.That, the learned trial magistrate erred both in law and in fact by convicting and sentencing the Appellant to life imprisonment without considering that the complainant's parents were the Appellant's employers, that there existed a conflict between them arising from employment and salary disputes, and that such circumstances gave rise to a possible motive for falsely implicating the Appellant.4.That, the learned trial magistrate erred both in law and in fact by failing to consider the Appellant's defence, which was credible, plausible and sufficient to raise reasonable doubt and warrant an acquittal.’’ 3.The appeal was canvassed by way of written submissions. By his undated submissions, the Appellant contended that he was wrongly convicted for the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. 4.Addressing the 1st, 3rd and 4th grounds, the Appellant argued that the trial court relied on inadequate and contradictory medical evidence to conclude that defilement had occurred. Stating that although the clinical officer testified that the complainant had injuries to her genitalia, the P3 Form was incomplete because the section requiring a detailed description of injuries to the labia majora, labia minora and vagina was left blank. Which omission created uncertainty as to the nature and extent of the injuries thereby undermining the reliability of the medical evidence. Consequently, he contends, the prosecution failed to establish penetration through credible medical evidence and the trial court erred in relying on the incomplete medical findings to convict him. 5.Further, contending that the complainant's parents were his employers with whom he was engaged in a dispute concerning his salary and other disagreements, the Appellant asserted that their evidence on his arrest was inconsistent whereas they concealed the employment dispute which provided the motive for falsely implicating him. He argued that the prosecution witnesses' timelines regarding their movements on the material day were inconsistent and improbable. Hence, they were not credible witnesses and that inconsistencies in their evidence which the trial court failed to address, created reasonable doubt. 6.He further complained that the trial court failed to properly evaluate his sworn defence, essentially that he was coerced into admitting an offence he had not committed because of a dispute over land and employment. He contended that had the trial court properly analysed the defence alongside the prosecution evidence, it would have found that the prosecution had not proved its case beyond reasonable doubt. 7.Finally addressing the 2nd ground, the Appellant submitted that the trial court failed to give due consideration to an age assessment report indicating that he was below eighteen years at the time of his arrest. Pointing out that the prosecution had requested an age assessment after doubts arose regarding his age and that the trial court initially acknowledged the report showing he was a minor, and appointed a pro bono counsel to act for him. According to the Appellant, the prosecution later introduced an identity card allegedly obtained through the Officer Commanding Station (OCS) to suggest that he was an adult. Disputing the document, he contended that it was irregularly produced, its authenticity never established by the Registrar of Persons, whereas the OCS was not called to testify regarding its procurement. He therefore argued that the trial court improperly disregarded the age assessment report and denied him the constitutional protections available to child offenders. 8.Contending that he was deprived of legal representation after the prosecution subsequently alleged that he was an adult, he asserted that his constitutional rights to fair trial and legal representation under Articles 25(c), 27, 28 and 50(2)(g) and (h) of the Constitution were thereby violated. 9.Describing his personal circumstances as an orphan, with limited education, and a minor at the time of his arrest, he asserted that the sentence of life imprisonment was harsh and excessive. He therefore urged the court to allow the appeal, quash the conviction and set aside the sentence of life imprisonment. 10.The Respondent’s submissions are dated 13th March, 2026. Therein it was submitted that the appeal lacked merit and should be dismissed because the Appellant was lawfully convicted and sentenced for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The Respondent pointed out that the complainant was eight years old at the time of the offence, as proved by her birth certificate, hence the offence attracted the mandatory sentence of life imprisonment upon conviction. 11.Addressing the question whether the prosecution proved its case beyond reasonable doubt, the Respondent argued that the prosecution discharged its burden of proof through cogent, consistent and corroborated evidence. 12.The Respondent highlighted evidence by the complainant (PW1) as corroborated by her mother (PW2) and medical evidence. It was submitted that the prosecution evidence was consistent throughout the trial and was not shaken during cross-examination. It was contended that PW1 gave a clear and truthful account of the incident, positively identified the Appellant as the perpetrator, and that her testimony was corroborated by PW2, PW3 and further supported by medical evidence. The latter evidence confirming injuries consistent with defilement, including swollen genitalia and bloodstains found on the complainant's clothing. Thus, all the essential ingredients of the offence were proved beyond reasonable doubt. 13.Concerning the question whether the trial court properly considered the Appellant's defence, the Respondent asserted that the trial court duly considered the said defence but correctly rejected it. Contending that the Appellant's unsworn testimony was incapable of rebutting the prosecution case. Moreover, the claims that the charges had been fabricated by the complainant's family in order to dispossess him of his land were, according to the Respondent, mere allegations unsupported by any evidence and incapable of raising reasonable doubt. Consequently, the Respondent posited that the strong prosecution evidence could not be dislodged by the Appellant’s weak defence which was properly dismissed by the trial court. 14.In conclusion, the Respondent therefore urged the Court to dismiss the appeal in its entirety and uphold both the conviction and the sentence imposed by the trial court. Analysis and Determination 15.The court has considered the record of the trial, the grounds of appeal and rival submissions on this appeal. The duty of this court sitting as a first appellate court is to re-evaluate and re-consider the evidence adduced before the trial court with a view to arriving at an independent conclusion. The Court of Appeal held in Okeno -vs- Republic (1972) E.A 32 that:“It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings 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 the witnesses’’, see Peters Vs. Sunday Post (1958) EA. 424.” 16.Three ingredients constitute the offence of defilement and must be proved beyond reasonable doubt, namely, penetration, age of The key question raised on this appeal is whether the prosecution proved these three elements beyond reasonable doubt. A corollary issue raised relates to the question of the Appellant’s age and whether his fair trial rights were violated in the trial. 17.The court noted that although in general the typed record of the lower court accurately reflected the handwritten original record, some words on the original record of the trial were not accurately rendered in the typed record. That said, the gist of the prosecution case was as follows. 18.RK (PW1) gave unsworn evidence, as the trial court formed the view, following a voir dire examination, that the child, though intelligent, did not understand the nature of an oath. Her evidence was that she was 7 years old, a Pre-Primary 1 pupil, residing at Isinet, Loitokitok with her parents, brother and an uncle; that on 25/5/2020 at about noon, while her mother and father were away at work, the Appellant (whom she identified as Wambua, the person in the dock) approached her as she was playing at home with another child and that while her brother was inside the house, the Appellant took her to the back of her house. 19.There, he removed her underpants, covered her mouth, removed his own clothing exposing his ‘’kadudu” (a child’s euphemism for penis), which he inserted in her organ for urinating (vagina). He then left, having threatened to punish her if she disclosed the incident to anyone. She wore her underwear, but her mother later discovered blood on her private parts while bathing her, and that she then narrated the day’s incident to her parents, following which the Appellant was apprehended and restrained, but later escaped. She was subsequently taken to hospital for examination and treatment. 20.NT (PW2) is the mother to PW1. Stating that she resided at Loitokitok and that PW1 was aged 8 years at the material time, she produced her birth certificate as Exh. 1. Testifying that she was away at work on the material date, leaving the complainant in the care of her younger brother, she said she returned home at about 6:00p.m., fed and bathed the children. PW1 then retired to bed, but at about 9:00 p.m. she heard her crying and upon inquiring, the child disclosed that the Appellant (their neighbour) had defiled her, after he removed her clothing, and threatened her. 21.Upon examining the child, she observed bleeding from the genital area, and reported the matter to her husband TKM (PW3) when he returned home. The Appellant was later traced, apprehended, and restrained by the father and neighbours but escaped overnight. On the next day, the child was escorted to Mashuuru Health Centre, and a report made to Mashuuru Police Station. She denied during cross-examination that the Appellant had ever worked for her, or that a land dispute existed between them. 22.PW3, the father of PW1 testified that as he had left for work in the material morning, the children including PW1 were playing at home. He returned at about 10:00p.m. PW2 informed him that the complainant had been defiled by Wambua (the Appellant) and had sustained injuries to her private parts. He stated that the Appellant was known to him as he worked for a neighbour, and that he proceeded to his house and brought the Appellant to his home, and after questioning him in the presence of neighbours, including one Kisongoi, the Appellant was restrained by being tied to a tree with a rope but he had escaped by morning. The complainant was taken to Mashuuru Hospital on the next day and the matter reported to Mashuuru Police Station, where statements were recorded. 23.In cross-examination, he denied any land dispute with the Appellant or ever having employed him. 24.The fourth witness was Stephen Lekaiya (PW4) the clinical officer who examined both PW1 and the Appellant at Mashuuru sub-county Hospital. He testified that the complainant, was then aged 8 years. He found no injuries to the head or thorax; the only injuries were to the genitalia, with the labia majora and labia minora swollen, hymen broken, and a slight vaginal tear, accompanied by a bloody discharge; HIV and syphilis tests were negative; urinalysis showed blood and pus. He administered antibiotics and analgesics. He completed the P3 form which he produced as Exh. 2 and treatment notes as Exh. 3. He also examined the Appellant whose age was 19 years for injuries and found none. His lab tests results were negative for HIV/syphilis. He produced the Appellant’s P3 form as Exh.4a and laboratory results as Exh.4(b). 25.During cross-examination, PW4 stated that he had 13years experience, that the child had not bathed before examination, that the findings in the P3 forms reflected his observations on examination, that he did not carry out DNA analysis although he examined the Appellant, and that beyond confirming the fact of defilement, he could not state who had defiled the child. 26.PC Paul Ndungu (PW5) testified to having taken over investigations upon the transfer of the case from Mashuuru to Kajiado Police Station. He recorded statements from the witnesses and established that the Appellant had gone to the complainant's home in the absence of her parents, and defiled her. Reiterating the sequence of events as narrated by PW2 and PW3, including the apprehension, escape, and eventual arrest of the Appellant, he stated concerning PW1’s age that her birth certificate confirmed that she was aged 8years at the material time. He also produced the Appellant’s identification documents, namely, a waiting card dated 12.02.2020 and national identity card (Exh. 5 and 6) showing that he was born in 2001 and therefore aged 19 years in the material period. 27.In cross-examination, he stated that initial reports indicated that PW1 was 9 years old, but the birth certificate showed she was 8 years old at the material time; and that when brought to the station, the Appellant claimed that the parents of PW1 owed him a debt. 28.Upon being placed on his defence, the Appellant elected to give unsworn evidence. Denying the charge, he stated that he resided in Kitui and that on the material day he had been working with two friends at a farm until evening and later retiring for the night in their house. They were woken up by their employer (PW3) who instructed them to go to his compound, where the Appellant was assaulted and tied to a tree while being pressured to confess to sexually assaulting PW3’s daughter. He stated that the accusation was fabricated by PW3, who had instructed the minor to implicate him in order to take his land. 29.Reviewing the foregoing evidence, although PW1 was, due to her tender age, uncertain of her actual age, there was hardly any dispute concerning the complainant's age which, according to the birth certificate produced by PW2 as Exh.1 showed that the minor complainant was 8 years old in the material period. Thus, the ingredient of age was proved beyond reasonable doubt. 30.As regards penetration, PW1's account of the assault was clear, consistent, and corroborated in material respects by the evidence of PW2, who personally observed bleeding from the child's genitalia within hours of the incident, and by PW4's clinical findings. The P3 form (Exh.2) contains a comprehensive description of the injuries noted on the minor’s genitalia, including swelling of both the labia majora and minora, tear to the vagina, broken hymen and bloody discharge, all consistent with the initial treatment notes dated 26.05.2020 (Exh.3). The Appellant’s complaint that the description of injuries was somehow incomplete or wanting therefore has no basis. On the face of it, the relevant portions of the P3 form in respect of PW1 were duly completed with details of the injuries sustained by the complainant. 31.Claims by the Appellant that he was framed by PW1’s parents because of a land dispute were not put to them by the Appellant who in questioning them only suggested that he was their employee, a suggestion both denied. And which assertion does not explain the documented injuries of PW1 or why PW1, a child of tender years, would lie as to how she sustained the genital injuries. She was evidently defiled, as the trial court correctly found. 32.Concerning the identity of the assailant, there was hardly any dispute that the minor was familiar with the Appellant and vice versa, as both resided within the same neighbourhood in the material period. The incident itself was said to have occurred in the daytime and in the open, behind the house where PW1 and her parents lived. Thus, the conditions favoured recognition of the assailant, which is more satisfactory, more assuring and more reliable than identification of a stranger as espoused by the Court of Appeal, in the case of Reuben Tabu Anjononi & Others v Republic [1980] eKLR. 33.PW1’s account was corroborated by PW2 and PW3, to whom she made disclosure naming the Appellant, who was admittedly summoned to PW3's compound on the same date at night. The allegation that the Appellant was framed by PW2 and PW3 in order to snatch his land was never put to them during cross-examination, and in any event, the minor victim was too young to be effectively conscripted into such a complex scheme, whereas her injuries were real and confirmed through medical evidence. The Appellant in questioning her did not suggest to her that her parents had coached her to make false accusations against the Appellant. 34.The Appellant also complained that the trial court did not consider his defence. Here, it is not in dispute that the Appellant elected to give an unsworn statement, by its nature not tested by cross-examination, hence would generally carry less weight than sworn testimony. But that is not to say it can be disregarded altogether, more so as the burden of proof in criminal cases always rests on the prosecution. 35.The Appellant's account, that he was arraigned in respect of trumped up charges over a land dispute with his employer, was patently improbable when weighed against the totality of the prosecution evidence. Including the complainant's detailed and consistent account of the assault, the recent complaint to her mother, or the medical findings of genital injury consistent with defilement. The defence was totally displaced by the prosecution case. The trial court did in fact consider the defence, as reflected in the judgment, and correctly found it wanting in light of the strength of the prosecution evidence. 36.Finally, the Appellant has sought to make heavy weather of the allegation that he was a minor during the trial. When PW4 testified that he examined the Appellant and completed the P3 form (Exh. 4a) which showed his estimated age as 19 years, the Appellant never challenged that assessment during cross-examination, nor the evidence by PW5 who produced the copies of his registration waiting card and identity card (Exh. 5 and 6) bearing his details, and showing his age to be 19 years as of the date of the offence. In his evidence, the Appellant steered clear of the issue of his age. 37.The record shows that on the plea date, the prosecutor requested the trial court to make an order for the assessment of the Appellant’s age. Subsequently, a report from Kajiado County Referral Hospital signed for a doctor named Marion, and dated 3.06.200 indicating the Appellant to be under 18 years of age, was filed. The court therefore appointed pro bono counsel to represent the Appellant and had him remanded in a juvenile remand facility. 38.However, on 29.03.2021, this initial assessment was discarded after copies of the Appellant’s identity card and waiting cards were retrieved through PW5 from the Registrar of Persons, confirming that the Appellant was an adult. His counsel, earlier appointed on pro bono basis having seen the documents, and conceding that the Appellant was indeed not a minor, sought the directions of the court, which directed that the Appellant, having been established to be an adult, would have to privately engage counsel. The trial court made appropriate orders based on material presented before it. It cannot be blamed for allegedly violating the Appellant’s fair trial rights, when it withdrew pro bono counsel after it had been demonstrated that he was an adult. 39.The documents tendered by PW5 are consistent with the oral and documentary evidence of PW4 who, having examined the Appellant on 28.05.2020 had estimated his age to be 19 years old. Both Exh. 5 and 6 being undisputed public documents could be produced by PW5, and no objection was raised to the production by the Appellant, whereas his own age was not an ingredient of the offence preferred against him. It is telling that in his own defence statement the Appellant did not deny that he had, as per Exh. 5 and 6 applied for an identity card prior to his arrest, and had therefore already attained the age of 18 years. 40.The copy of his identity card, No. 39060108, and a police-waiting card dated 12.02.2020 (Exh. 5 and 6), both indicate his date of birth to be 14.05.2001. Indeed, the Appellant’s evidence at the trial was that he was already employed and working and owned land at the time of arrest; that is certainly not the profile of a child. A perusal of the record shows that at no time prior to, during or after the trial or in mitigation, did the Appellant raise the question of being a minor, which if true, would be a matter within his knowledge. 41.It would seem that in raising that matter for the first time on this appeal, the Appellant was attempting to take advantage of what was evidently an erroneous assessment by staff at the Kajiado County Referral Hospital which, though not part of evidence, was on the lower court record. However, as this court indicated, the Appellant’s age, though relevant for purposes of fair trial protections and perhaps eventual sentence, was not an ingredient of the offence facing him. In this case, none of the guarantees to fair trial were violated, as indeed the Appellant upon pro bono counsel withdrawing sought to be given copies of the witness statements and thereafter fully participated in the trial, questioning witnesses and giving his defence. Therefore, nothing turns on the complaint regarding fair trial rights. 42.Regarding the sentence awarded, 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’’. This is a mandatory sentence. The victim in this case was, per charge, a 9 year old child whose defilement has likely scarred her for life. The Court of Appeal in Dismas Wafula Kilwake v Republic [2019] eKLR in discussing Section 8 of the Sexual Offences Act stated:“In Hadson All Mwachongo v. Republic (2016) eKLR, this Court stated as follows regarding the sentences prescribed by the Sexual Offences Act:“The Sexual Offences Act provides for punishment for defilement in a graduated scale. The younger the victim, the more severe the punishment. Where the victim is aged 11 years or less, the prescribed punishment is imprisonment for life. Defilement of a child of 12 years to 15 years attracts 20 years imprisonment while defilement of a child aged 16 years to 18 years is punishable by 15 years imprisonment." 43.In the result, this court is satisfied that the prosecution proved its case beyond reasonable doubt against the Appellant. Further, that the Appellant was properly convicted, and the sentence imposed was the lawful mandatory sentence prescribed by the section under which he was charged. The trial court, as indeed this court, would have no discretion in the matter of sentence. There is therefore no merit in the grounds challenging the conviction and sentence and the appeal is hereby dismissed. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 16TH DAY OF JULY, 2026.C. MEOLIJUDGEIn the presence of:For the State: Ms. KihumbaAppellant: PresentC/A: Lepatei