https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6316

Muthoni v Republic (Criminal Appeal E012 of 2025) [2026] KEHC 6316 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6316 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E012 of 2025 MA Odero, J May 8, 2026 Between Patrick Waigwi Muthoni Appellant and Republic Respondent Judgment 1.The Appellant Patrick Waigwi Muthoni has filed this appeal challenging his conviction and sentence in the Magistrates Court in Nyeri. 2.The Appellant had been arraigned in the Lower Court on 8th November 2021 facing a charge of Defilemnt Contrary To Section 8(1) As Read With Section 8(3) of the Sexual Offences Act, 2003. The particulars of the charge were that“On 31st day of October 2021 at about 1600hrs in Mathakwaini Village within Tetu Sub-county in Nyeri County intentionally and unlawfully caused his penis to penetrate the vagina of WK a child aged 13 years.” 3.The Appellant faced an alternative charge of Committing An Indecent Act With A Child Contrary To Section 11(1) Of The Sexual Offences Act, 2002. 4.The Appellant entered a plea of ‘Not Guilty’ to both charges and the trial commenced on 22nd March 2023. The prosecution called a total of five (5) witnesses in support of their case. 5.The complainant WK told the court that she was aged thirteen (13) years old and was a student at [Particulars Withheld] School. The child stated that on 31st October 2021 which was a Sunday she did not go to church with her family as she did not have any clean clothes. On that day the complainant cleaned the house and then decided to go to the saloon to have her hair plaited. She locked their house and took the keys to a neighbour known as ‘Aunt Margaret’. 6.The said ‘Aunt M’ gave the child some food to take to her elderly mother. The child took the food and proceeded to the home of ‘Aunt M’ mother. On the way she met two friends who accompanied her. 7.At the gate they met the appellant who the complainant referred to as ‘Patty’. The appellant greeted them, then the children proceeded to deliver the food the complainant had been sent with. 8.As the complainant left the compound, the appellant who was on a phone called the child and stopped her. He pulled her into his parents’ house leaving her two friends outside. The complainant testified that whilst in the house the appellant removed her clothes and defiled her on a sofa. 9.After the incident the appellant released the child and she re-joined her two friends. The complainant proceeded on her journey to the saloon on the way they met two boys A and T who were also heading in the same direction. As she proceeded the complainant realized that she had blood on her trousers. Nevertheless she proceeded to the salon and had her hair plaited. She then returned home but did not tell anyone what had happened due to fear. 10.The next morning being a Monday the complainant prepared to go to school as usual. Her brother ‘G’. gave her an envelope containing two pills and told her that the appellant had sent him to deliver the pills to the complainant. The child swallowed one pill but kept the other one and went with it to school. 11.At school the complainant decided to confide in her favorite teacher a Mrs Gichuki. She showed the teacher the pill. Upon being questioned by the teacher the child revealed to her that she had been defiled. The teacher alerted the head-teacher who then reported the matter to the police. The teacher also telephoned the complainant’s mother and told her to meet them at the police station. 12.The report was booked at the police station and then the complainant was taken to Nyeri PGH for medical examination. Thereafter the appellant was arrested and charged. 13.PW2 ‘JWK’ was the complainant’s mother. This witness told the court that she was a farmer and a resident of Tetu, where she lived with her husband and her three (3) children. PW2 told the court that the complainant was her second born child. She told the court that the complainant had been born on 5th November 2008 and was aged thirteen (13) years. She identifies the child’s birth certificate Pexb 3. 14.PW2 told the court that on 31st October 2021 she received a call from the complainant’s teacher asking her to meet them at Ndungamano Police Station. PW2 went to the police station and met her daughter there with her teacher. PW2 was informed that her child had been defiled the previous day. The complainant then narrated to her mother the events of the previous day. The police booked the report and the child was taken to Nyeri PGH for medical examination. The child, named the appellant as her assailant. The appellant was then arrested and was taken to the police station, where he was charged. 15.PW3 ‘GKK’ was the complainant’s brother. He told the court that he was a student in Form 4 at Karangua Secondary School and confirmed that the complainant was his younger sister. 16.PW2 stated that on 31st October 2021 at 1.00pm he went to Wamagana to watch football. There PW3 met the appellant who was known to him. As PW3 left to go home the appellant approached and gave him a small envelope containing two tablets and told PW3 to give the medicine to his sister. PW3 states that when he got home that day he did not see the complainant. The next day he saw his sister as she was preparing to go to school. He then gave her the medicine. Later PW3 heard that his sister had been defiled. 17.PW4 DR. William Muriuki is a medical doctor who at the Material time was attached to Nyeri PGH. PW4 confirms that on 1st November 2021, the complainant was attended at their facility.He produces the P3 form Pexb 6 and the PRC form Pexb 4 which were filled out after examination of the complainant. 18.PW5 Corporal Edward Chepsergon of Ndugamano Police Station was the arresting officer. He produces the complainant birth certificate Pexb 3 blood-stained clothes Pexb 1 and Pexb 2 and the khaki envelope containing the pill Pexb 5. PW5 stated that after conclusion of investigations he charged the appellant with the offence of defilement. 19.At the close of the prosecution case, the appellant was found to have a case to answer and was placed on his defence. The Appellant elected to give a sworn defence in which he denied having defiled the complainant. The appellant called four (4) witnesses in support of his defence. 20.On 9th July 2024, Hon. Angima, Senior Resident Magistrate delivered her judgment in which she convicted the appellant on the main charge of defilement. 21.Following his conviction the appellant was granted an opportunity to mitigate. The trial magistrate then delivered the sentencing ruling dated 28th August 2024 in which she sentenced the appellant to serve twenty (20) years imprisonment. 22.Being aggrieved by both his conviction and sentence the appellant filed this appeal which is premised on the following grounds;-“1.That, the learned trial magistrate erred in both law and fact in failing to appreciate the fact that the alleged victim in this case clearly demonstrated an incredibly doubtful integrity and whose evidence was and remains doubtful occasioning a serious prejudice.2.That, the learned trial magistrate again erred in both law and fact in failing to appreciate that the critical elements in defilement were not proved to the required standards in law occasioning a serious miscarriage of justice.3.That, the learned trial magistrate further erred in both law and fact in not considering that the whole prosecution case was riddled with material discrepancies which were capable of unsettling the verdict hence a prejudice.4.That, the learned trial magistrate further erred in law and fact in failing to consider the plausible appellant’s sworn defense statement which was not contested and or unproved by the prosecution hence still stands clearly demonstrating that the instant matter was a framed up one to curtail my success for envious reasons.5., the instant matters proof was below the required standards of proof and therefore capable of impeaching the whole substance of the matter.” Analysis and Determination 23.I have carefully considered the appeal before this court, the record of the trial before the Lower Court as well as the written submissions filed by both parties. 24.This is a first appeal in which the duty of the Court is to re-examine and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of Okeno -vs- Republic [1972] EA 32 the court set out the duties of the appellate court as follows:-“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 Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding and conclusions, 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 v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174). 25.Similarly in the case of David Njuguna Wairimu -vs- Republic [2010] eKLR the Court of Appeal stated as follows:-“The duty of the first appellate court is to analyse 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.” 26.The Appellant faced in the lower court a charge of Defilement. In the case of Charles Wamukoya Karani -vs- Republic [2013] eKLR the Court set out the critical ingredients of a charge of Defilement as follows:-“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 27.The age of the victim is a critical factor in a charge of defilement as the law provides for the sentence to imposed (if convicted) based on the child’s age. 28.Rule 4 of the Sexual Offences Rules state that“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.” 29.In the case of Francis Omuroni -vs- Uganda, Criminal Appeal No. 2 of 2000, the Court of Appeal of Uganda stated as follows:-“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and commonsense…….” 30.Similarly in Edwin Nyambogo Onsongo -vs- Republic [2016] eKLR the Court stated thus“…………………….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 valuable.” [Own emphasis] 31.The complainant told the court that she was born on 5th November 2008 and that she was aged thirteen (13) years when the incident occurred. Indeed the trial court did note that the complainant was a young child and proceeded to conduct a ‘Voire dire’ examination before recording her evidence. 32.PW2 who was the child’s mother stated that the complainant was her second born child. PW2 confirmed that the child was born on 5th November 2008. PW2 identified the copy of the child’s birth certificate Serial Number 96xxxx which document indicated that the complainant was indeed born on 8th November 2008 at PGH Nyeri. The birth certificate was produced in court as an exhibit Pexb 3. 33.This birth certificate is an official government document. The same has not been challenged by the Appellant. Having been born in November 2008 the complainant was aged thirteen (13) years in October 2021 when this incident occurred. I am satisfied that the age of the complainant has been satisfactorily proved. 34.The next element of the charge of defilement requiring proof is the fact of penetration. Section 2 (1) of the Sexual Offences Act defines penetration as follows:-“The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 35.The complainant told the court that she was defiled on 31st October 2021. The complainant narrated how her assailant accosted her when she had gone to deliver food to his grandmother. She stated that he pulled her into the house and defiled her on the sofa. In her own words the complainant stated as follows:-“…………….He then put my leg on his shoulders. I did nothing. Before he closed my mouth I tried telling him to stop but he didn’t. He was holding me with his left hand which was now at the inside of the seat. His right hand was free. He did all this with his right hand. He also removed my inner-wear. He also removed his clothes. He had a black trouser of a material like my side pocket. He had a dark blue vest with yellow spots. He didn’t remove his vest. He then removed his penis and inserted it into my vagina by force. I know a penis. It is a man’s sexual organ. My vagina is in the middle of my legs. He inserted his penis into my vagina. I could not stop him. I didn’t want him to do it. I even cried. It was painful……” 36.Further on in her evidence the complainant says“The thing he did to me is sex. It is for married people. I heard it is called defile. I didn’t allow Patrick to do sex with me…….” 37.The complainant gave a clear cogent and graphic account of what had happened to her. She even described the clothes which the appellant was wearing during the incident. The child remained unshaken under intense cross-examination by defence counsel. In view of the detail provided by the child in her account it is unlikely that this was a fabricated tale. The complainant would have had no reason to claim that she had been defiled if no such incident had occurred. 38.Following the assault the complainant stated that she proceeded to go to her initial destination being a hair salon in Mathakwaini where she had her hair plaited. The child stated that on her way there she noticed blood on her trouser and underpant. The complainant’s black trouser and cream blood-stained panty were later retrieved by her mother PW2. The clothing were produced in court as exhibits Pexb 1 and Pexb 2. 39.The day of the incident the complainant did not tell anyone what had happened. She explained that she did not tell her mother because she feared that she would be beaten and/or punished. It was only the following day that the complainant felt safe enough to open up to her favorite teacher to whom she recounted her ordeal. 40.PW4 Dr. William Muruko confirms that the child was brought to Nyeri PGH on 1st November 2021 for medical examination and treatment. PW4 produced the Complainant’s P3 form dated 3rd November 2021 Pexb 4 as well as the PRC form dated 1st November 2021 Pexb 6. 41.Upon examination it was noted that the child had a freshly broken hymen with mucoid discharge. Her trousers were noted to be blood-stained. The injuries were found to be consistent with defilement. 42.The freshly broken hymen and mucoid discharge are clear proof that there had been interference with the child’s genital organs. This is medical evidence which corroborates the complainant’s claim of defilement. The said medical evidence was not been challenged and/or corroborated. 43.In his written submissions the appellant took issue with the fact that PW4 was not the doctor who actually examined the child. He challenges the production of the medical documents by a doctor who was not the maker. The appellant who was represented by counsel during the trial did not raise any objection during the trial to PW4 producing the medical forms and his lawyer even cross-examined PW4. The defence did not apply to have the actual makers of the said documents called. Having acquiesced during the trial the appellant cannot now raise an objection to raise an objection to the production of said documents. 44.I have noted that the teacher to whom the complainant reported the incident did not testify as a witness. Does this omissions weaken the prosecution case? I think not. This teacher was not a material witness as she did not witness the incident and indeed was not in the company of the child on the day the defilement occurred. Her only role would have been to confirm that the child reported the incident to her. PW2 the child’s mother confirmed that it was her daughter’s teacher Mrs. Wachira who called her to school and recounted to her what the child had told her. PW5 who was the investigating officer confirmed that he received the report from the teacher and mother. 45.I am satisfied that based on her own testimony as well as the corroborative medical evidence, the fact of penetration has been proved to have occurred. The final element of a charge of defilement which requires proof beyond reasonable doubt is the identity of the assailant. 46.In this case the complainant identified the appellant as the man who defiled her. The appellant was a nephew to the child neighbour and was a person whom she knew well. The child referred to the appellant by his given name ‘Patrick’ or Patty’. In her evidence the complainant says“The person sitting in the dock is Patrick Migwi. I knew him a long time ago. Like 3 years now. During corona time he used to come to our neighbour auntie. Our homes are adjacent to each other. Patrick used to visit Aunt Margaret. He’d sit outside. He wasn’t living there. He used to come get animal grass with his cousin Austin Migwi. They’d be given tea, relax abit then they’d get the animal grass and leave….” 47.PW2 the complainant’s mother confirms that the appellant was a nephew to their neighbour known as ‘Aunt Margaret”. 48.This is a case where there is evidence of recognition. In the case of ANJONONI & 4 others -vs- REPUBLIC [1980] KLR the court held that:-“……….recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 49.The appellant was a person well known to the child. She had seen him severally coming to visit their neighbour ‘Aunt Margaret.’ The complainant knew the appellant’s name and knew his home where he lived. In the circumstances there would be no possibility of a mistaken identity. 50.The incident occurred during the day time. There was daylight and the complainant was able to see the appellant very well. The child stated that the appellant first greeted her as she took food to his grandmother. Later as she was leaving the appellant pulled her into the house leaving her two friends outside. The complainant was alone with the appellant inside the house in close proximity. The circumstances favoured a clear and reliable identification. 51.I am mindful of the fact that this is a case where there is only one identifying witness being the complainant herself. As is the norm sexual offences are often committed in a clandestine or secretive manner. 52.Section 124 of the Evidence Act Cap 80 Laws of Kenya provides as follows:-“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.” 53.The above position was affirmed in the case of J.W.A VS Republic (2014) eKLR, where the Court of Appeal held that:“We note that the appellant was charged with a sexual offence and the proviso to section 124 of the Evidence Act clearly states that corroboration is not mandatory. The trial court having conducted a voire dire examination of PW1 and being satisfied that the complainant was a truthful witness, we see no error in law on the part of the High Court in concurring with the findings of the trial magistrate.” 54.Therefore Section 124 empowers a court in Sexual offences to convict an accused on the basis of the evidence of the complainant alone. Undoubtedly this is because sexual offences are normally committed in secret - there is very rarely an eye witness to a rape or defilement. 55.In his defence the appellant raised an alibi defence. He stated that on the material day 31st October 2021 after leaving church, he proceeded to ‘Kiandu’ to play football which started at 2.00pm. That the match ended at 3.00pm but he remained at the grounds with his friend “Alex Mugo’ until 8.00pm. The appellant states that he did not return home that night but spent the night at ‘Kiandu’ in the home of his grand-mother and only returned home the next day at 3.00pm. The appellant stated that he never saw the complainant on 31st October 2021. 56.Firstly the appellant only raised this alibi defence after he was placed onto his defence. He did not put this alibi to any of the prosecution witnesses. In the case of Hillary Kiplangat Kipyego -vs- Republic [2015] eKLR, Hon. Lady Justice Olga Sewe cited the case of Republic -vs- Sukiha Singh S/O Wazir Singh 19396 EACA 145, the Court of Appeal for Eastern Africa stated as follows:-“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuiness proceedings will be stopped.” 57.In this case the appellant who I note was represented by counsel did not raise this alibi defence early enough in the proceedings. As such the prosecution had no opportunity to either investigate the alibi or to call rebuttal evidence. 58.Secondly the appellant claimed that he was playing football with friends who included one ‘Alex Mugo.’ He did not call this ‘Alex Mugo’ as a witness. Instead the appellant called DW5 Jesse Wachira Wanjohi who claimed that he is the coach of Kiandu Glazers Football club, the team in which appellant was a player. DW5 did not produce any evidence to prove that he was the coach of that football club nor did he adduce any evidence to prove that the appellant was a player in said team. 59.The appellant in his submissions faulted the prosecution for failing to call witnesses who he termed as ‘crucial’ to the prosecution case. There is no laid down number of witnesses required to prove a case of defilement and the decision of whom to call to testify lies squarely with the prosecution. The defence did not request to have any person summoned to testify. 60.The appellant cited failure to call as witnesses the lady to whom the complainant delivered food and the two (2) boys the complainant said she met after the ordeal. In my view they were not crucial witnesses – they were peripheral witnesses. Failure to call the said persons did not in any way weaken the prosecution case. 61.I do agree with the learned trial magistrate who in dismissing the appellants defence stated as follows:-“There are enough precedents in guiding this court in so far as the defence of alibi goes. Though the burden of proof never shifts to the defence in a criminal case, I find that the defence out of the natural sense of explaining himself had several opportunities to put forward his notice of an alibi defence. Firstly when the accused person was arrested and escorted to the police station where he was processed for Court, in court during plea taking and on any of the days when this matter was scheduled for hearing of the prosecution’s case. The accused person had legal representation and must have briefed his counsel. Thus alibi was never once raised during the cross-examination of any of the witnesses who testified in court. It was only brought forth during the defence hearing.” 62.Finally I am satisfied that the prosecution did prove all the elements of the offence of defilement beyond reasonable doubt. The conviction of the appellant by the trial court was sound and I do confirm that conviction. 63.Following his conviction the appellant was accorded an opportunity tomitigate. A pre-sentence report was filed in court on 13th August 2024. On the 28th August 2024 the trial court sentenced the appellant to serve a term of twenty (20) years imprisonment. 64.The appellant had been charged under Section 8(1) as read withSection 8(3) of the Sexual Offences Act Section 8(3) of the said Act provides as follows:-“(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.” 65.As pointed out by the trial court the law provides for a Mandatory Minimum sentence under the Sexual Offences Act. In Republic -vs- Joshua Gichuki Mwangi Petition No. 18 of 2023 the Supreme Court of Kenya upheld the constitutionality of the minimum mandatory sentences provided for under the Sexual Offences Act. Therefore upon conviction, the trial court had no option but to impose the mandatory minimum sentence provided for by the law in this case being twenty (20) years imprisonment. As such I find that the sentence imposed by trial court is lawful and cannot be impeached. 66.Finally I find no merit in this appeal. The same is dismissed in its entirety. The conviction by the trial court is confirmed and the sentence is upheld. DATED IN NYERI THIS 8TH DAY OF MAY 2026............................MAUREEN A. ODEROJUDGE