https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7385

Muthoni v Republic (Criminal Appeal E043 of 2025) [2026] KEHC 7385 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7385 (KLR) Republic of Kenya In the High Court at Embu Criminal Appeal E043 of 2025 RM Mwongo, J May 28, 2026 Between Dennis Murimi Muthoni Appellant and Republic Respondent (Appeal arising from the decision of Hon. J. Gichimu in the Runyenjes MCSO No. E017 of 2023 delivered on 19 th June 2024) Judgment The Charge 1.The appellant herein was charged with the offence of defilement contrary to section 8(1) as read together with section 8(3) of the Sexual Offences Act. The Particulars are that on 10th October 2023 in Embu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of JMN, a child aged 12 years. 2.He faced the 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 10th October 2023 in Embu County, the appellant intentionally and unlawfully caused his penis to touch the vagina of JMN, a child aged 12 years. 3.The appellant pleaded ‘not guilty’ to the charge and after the full hearing, the trial court convicted him of the alternative charge and sentenced him to 10 years imprisonment. The Appeal 4.Dissatisfied with the decision of the trial court, the appellant filed an amended petition of appeal dated 22nd July 2025 seeking that the appeal be allowed and the judgment of the trial court be set aside. 5.The appeal is premised on the grounds that:1.The trial court erred both in law and fact and seriously misdirected itself in relying on the evidence of a single witness namely the complainant while the evidence of that witness was full of glaring inconsistence that made it unsafe and evidentially weak to rely upon to base so grave and weighty conviction;2.The trial court erred in law and fact in omitting to observe and warn itself that the prosecution had failed or omitted to call the essential witnesses namely the other children who were with the complainant before and after the alleged offence;3.The trial Magistrate erred in law and fact when he did not find that the prosecution case was not proved beyond doubt and thereby occasioned a miscarriage of justice thus misdirected himself on several matters of law;4.The trial Magistrate erred in law and fact in failing to conduct a voire dire in light of victim's understanding and sufficient intelligence in giving evidence.5.The trial Magistrate erred in law and fact and seriously misdirected himself when he failed the pertinent question to pose whether there was sufficient evidence that was adduced before court to prove that the Appellant was liable for the offence of indecent Act with a child; and6.The Trial Magistrate erred in law and fact by dismissing the Appellant's defence; and he went on to wrongly reaching a conclusion based on his own opinion rather than the evidence that also had patent inconsistencies thereof, and created doubts which ought to have been resolved in favour of the Appellant. Summary of the Evidence in the Trial Court 6.PW1 was the victim JM, who said she was 13 years as at the time of testifying. Her evidence was recorded after the court noted that she was not a child of tender years, hence was capable of giving sworn evidence. She stated that on the day of the incident, she was having lunch with her cousin and the appellant’s daughter. Afterward, they went to play at the appellant’s home and while there, the appellant called her and asked her where her mother was. She said that the appellant then pulled her into the house and blocked her mouth with his hand. He then took her to his bedroom where he placed her on his bed and removed her trouser and under pant then defiled her. Soon, her friends started calling for her, and he let her go. He told her not to tell anyone what had happened. She returned home afterwards and told her mother about the incident. Her friends asked her what she was doing with the appellant. 7.They reported the matter at Runyenjes Police Station and she was examined and treated at Runyenjes Level 4 Hospital. It was also her evidence that she was born in the year 2010. In cross-examination, she denied that her mother had asked her to lie in court. That her friends saw the appellant pulling her into his house. She stated that when the appellant took her into his house, he locked the door with a latch. That she did not scream because the appellant was blocking her mouth with his hand. That it was the first time he took her to his house and that she only told her mother about the incident. 8.PW2 was the victim’s mother who stated that on the day of the incident, she went to pick her children from Mama C’s place. Mama C told her to ask J, the appellant’s daughter what had transpired while the children played at their home earlier that day. She went home and PW1 told her that the appellant had pulled her into his house while blocking her mouth and that he had defiled her. 9.She reported the matter at Runyenjes Police Station and the police referred them to Runyenjes Level 4 Hospital. While at the hospital, she was informed that the appellant had surrendered himself to the police. The appellant is her neighbour and she knows him well. She produced PW1’s birth certificate as evidence. On cross-examination, she stated that PW1’s underwear had not been produced as evidence. That the medical examination revealed that PW1 had been defiled. 10.PW3 was PC Cecily Muthoni who stated that she was assigned to investigate the case once it was reported at the police station. PW1 narrated the occurrence and described the scene to her. she visited the scene and found that it matched the narrative given by PW1. The appellant was arrest on the same day and the victim’s blood-stained underwear was received as evidence by the police. In cross-examination, she stated that the appellant’s fingerprints were not taken upon arrest. 11.PW4 was Bridget Kimathi, a clinical officer at Runyenjes Level 4 Hospital. She stated that upon examining the child, she observed that there was a mild perineal bruise on the lower part of the vulva, the hymen was intact and there was a pink/white discharge. Urinalysis showed pus cells and there were no spermatozoa. She concluded that there was no penetration. She also stated that the discharge found had stayed for some time and the victim had been scratching it. That the scratching could have been causing the bruise seen. In cross-examination, she stated that the child already had a discharge and she was scratching herself which could have been the cause of the bruise. That is why she could not tell what caused the bruise. She also could not tell the age of the injury. 12.DW1, the appellant, denied committing the offence. He stated that on the day of the incident, he was summoned to Runyenjes Police Station in connection with the offence. He stated that the doctor confirmed that the victim’s hymen was not broken and that the bruising seen was as a result of the victim scratching herself. Parties’ Submissions 13.In his submissions, the appellant argued that there is no other eye witness to place him at the scene to prove the alternative charge which he was convicted of. That lacking this direct evidence, the trial court proceeded to convict him in error. He stated that the trial court failed to consider his defense and the fact that reasonable doubt was found in the totality of the evidence adduced. He argued that the trial court misapplied circumstantial evidence and he relied on the cases of Sawe v Republic [2003] KLR 364 and John Mutua Munyoki v Republic [2017] KECA 376 (KLR). 14.He also relied on section 11(1) of the Sexual Offences Act and stated that the alternative charge also had to be proved beyond reasonable doubt for it to stand. That in the absence of an eye witness to place him at the scene, he prayed that the conviction be set aside. Further reliance was placed on the cases of Michael Mugo Musyoka v. Republic [2015] eKLR, Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR) and Bukenya and Others v Uganda [1972] EA 549. 15.The respondent relied on sections 2 of the Sexual Offences Act and the case of Edwin Nyambogo Onsongo v Republic (2016) eKLR. It also relied on the meaning of child under section 2 of the Children Act. On identification of the perpetrator, it relied on section 124 of the Evidence Act and argued that the testimony of PW1 needed no corroboration to prove that the appellant committed the indecent act with her. 16.Further reliance was placed on the Court of Appeal’s decision in Maripett Loonkomok v Republic [2016] KECA 520 (KLR). Note was made that the trial court acknowledged that in its view, PW1 was not a child of tender years hence she could be placed under oath. It stated that the sentence imposed is correctly applied according to section 11(1) of the Sexual Offences Act. Issues for Determination 17.The issues for determination are as follows:1.Whether failure to conduct voire dire with respect to PW1’s evidence renders the appellant’s conviction unsafe;2.Where or not the offence was proved beyond reasonable doubt;3.Whether or not the sentence should be set aside. Analysis and Determination 18.The appeal herein is to be determined through reevaluation of the evidence adduced before the trial court. This was the guidance given in the case of Kiilu & Another v. Republic [2005]1 KLR 174, where the Court of Appeal stated thus:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and 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.” 19.The first issue is whether the trial court’s failure to conduct voire dire renders the conviction unsafe. Section 19 of the Oaths and Statutory Declarations Act provides that:“(1)Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.(2)If any child whose evidence is received under subsection (1) willfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment.” 20.The trial court was required, under this law, to form an opinion as to whether it is satisfied that (a) the witness is a child of tender years and (b) the child, of tender years or otherwise, understands the nature and duty of speaking the truth and is intelligent enough to justify the reception of evidence. These 2 factors will enable the court to decide whether or not to place a child witness on oath. 21.When PW1 took the stand, the trial court recorded that she was 13 years old. The court then recorded the “The witness is not a child of tender years. She will give sworn evidence”. The appellant’s contention is that the trial magistrate failed to conduct voire dire before taking PW’s evidence. In essence, he is challenging competency of the witness to testify. Section 125(1) of the Evidence Act presumes all witnesses as competent. It provides:“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.” 22.In the case of Maripett Loonkomok v Republic (supra), the Court of Appeal discussed the issue of who a child of tender yearsis, given that the Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on the matter. The court stated:“The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years.…..But it is equally true, as this Court recently found that;“In appropriate case where voire dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.” 23.Voire dire examination is potentially necessary for children under 14 years of age, but there is no specific formula for conducting it. Discretion is left to the trial court to determine how it will satisfy itself of the competency of a child witness. In this case, PW1 was a competent witness whose evidence was taken after the trial court satisfied itself as such. 24.The appellant was convicted of the alternative charge which is the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The provision states:“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.” 25.The indecent act in this case was that the appellant touched the victim’s vagina with his penis. The evidence adduced was required to have proved that the victim was a child within the meaning of section 2 of Children Act and that the appellant touched her vagina with his penis. 26.PW1 stated that at the time of the testimony, she was 13 years old. PW2 produced PW1’s birth certificate indicating that she was born in 2010. At the time of the incident on 22/10/2023, she was twelve days short of 13 years old. This is sufficient proof of age, given the many ways through which age may be proved. See the case of Mwalango Chichoro Mwanjembe v Republic (2016) eKLR. 27.PW1 identified the appellant as her assailant. She stated that while she was playing with her friends at the home of the appellant, the appellant called her and pulled her into his house. There, he defiled her by lying on top of her and inserting his penis into her vagina. PW4 stated that when she examined PW1, there were no signs of penetration even though there were bruises on her perineal area. She stated that she did not know how old the injury was or how it was inflicted. She stated that there was a pink/white discharge and that the victim had been scratching the area. That it was possible that the bruise occurred from the child’s scratching. 28.In this appeal, the appellant contended that the prosecution did not call any of the victim’s friends as a witness yet the victim expressly named them in her evidence. Under section 124 of the Evidence Act, the testimony of PW1 is sufficient to identify her assailant without the need for corroboration. The provision states:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” [Emphasis added] 29.Given the circumstances of the case, there is sufficient proof that the appellant committed an indecent act with a child, PW1. Following conviction, he was sentenced in accordance with the recommended sentence under section 11(1) of the Sexual Offences Act. The sentence is 10 years imprisonment as the mandatory minimum prescribed sentence in law. 30.The Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) rendered itself on the sentences prescribed under the Sexual Offences Act. It was held thus:“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious.” 31.The Supreme Court reiterated its findings in that case through its decisions in the cases of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) and Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR). It held that until parliament reviews the sentences imposed in statute, the court has no mandate to review them. Disposition 32.In my view, the prosecution proved the alternative charge of committing an indecent act with a child. Similarly, the sentence meted of ten (10) years for the said offence is the statutory minimum sentence prescribed in law. It was thus meted properly and lawfully. 33.Accordingly, the appeal lacks merit and is hereby dismissed. The trial Court’s conviction and sentence are hereby upheld. 34.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 28TH DAY OF MAY, 2026. ________________ R. MWONGOJUDGEDelivered in the presence of:1. Appellant Present at Mwea Prison2. Ms. Mwaniki for the Respondent3. Francis Munyao - Court Assistant