https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9621

Mutinda v Republic (Criminal Appeal E12 of 2024) [2026] KEHC 9621 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9621 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E12 of 2024 AN Ongeri, J June 25, 2026 Between Benard Musembi Mutinda Appellant and Republic Respondent (Being an appeal from the conviction and judgment of Hon. H.M MBATI (P.M) in Machakos Cr-Case No. E004 of 2020 delivered on 9/2/2024) Judgment 1.​The Appellant was sentenced to 20 years imprisonment for the offence of defilement c/s 8(1) as read with section 8(3) of the SOA No 3 of 2006. 2.​The particulars of the charge were that on 2/10/2020 at [Particulars Withheld], Kithangathini sublocation, Masinga Location of Mwala subcounty, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.M.K, a child aged 13 years. 3.​The Appellant was faced with a second count of indecent assault c/s to section 11(1) of the SOA in that on the same material particulars as in count 1 above, the Appellant intentionally touched the vagina of M.M.K, a child aged 13 years with his penis. 4.​The Appellant pleaded not guilty. 5.​The prosecution evidence in summary was that on the material the complainant was sent for milk by her mother. 6.She said the Appellant called her and told her to go with him to the bushes. 7.​He removed her clothes and his clothes and had sexual intercourse with her. 8.​He gave her Ksh 100. The father of the complainant (PW2) saw them and the complainant ran away to home of her cousin Wanza. 9.​The complainant’s father (PW2) said the complainant was sent for milk and she delayed. 10.​When he followed her, he found the shop of the Appellant open but he was not there. PW2 went to the bushes where he saw the Appellant wiping his penis and the complainant brushing her clothes. 11.​When PW1 saw PW2 she ran away. Four days later she was found at her cousin Wanza’s home and taken to Masinga police station. 12.​PW5, a clinical officer at Masinga Health Centre examined the complainant on 6/10/2020. 13.​PW5 said she had a foul smelling discharge. The hymen was torn but not fresh. 14.​The Appellant said in his defense that on 2/10/2020 at 8am, he opened his hardware shop and he did not have any assistant. 15.​At 11am he received a call to deliver 30 bags of cement. He ferried 3 bags at a time with his motor cycle until 3pm. 16.​At 5pm, he closed his shop and went home. He said he never met the complainant that day. 17.The trial court found the appellant guilty as charged on the main count and sentenced to 20 years imprisonment 18.The appellant appealed against the said judgment on the following grounds;i.That the learned trial magistrate erred in law and facts by not considering that the complainant in this case was not the mother of the victim.ii.That the trial magistrate erred in law and facts by not considering that evidence was hearsay.iii.That the trial magistrate erred in law and facts by not considering that evidence was not cogent.iv.That the trial magistrate erred in law and facts by not considering inconsistencies which were in want of merit. 19.The parties filed written submissions as follows; The appellant submitted that he was originally convicted of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, with an alternative charge of indecent act, and was sentenced to 20 years in prison. He now appeals against both conviction and sentence. 20.He argues that the trial magistrate began with a presumption of guilt and improperly shifted the burden of proof onto the appellant, whereas the accused has no duty to prove his innocence and the presumption of innocence remains unless the Crown proves guilt beyond a reasonable doubt. 21.He invites the appellate court to re-evaluate the entire evidence independently, and submits that if any element of evidence creates doubt or points to his innocence, he should be acquitted as a matter of right. 22.He seeks leave to amend his grounds of appeal to include the following: non-compliance with Section 200(3) of the Criminal Procedure Code; failure to prove penetration and identification beyond reasonable doubt; reliance on incredible prosecution witnesses and shifting the burden of proof; violation of constitutional rights to a fair trial and legal representation; and a sentence that is harsh, excessive, and unconstitutional. 23.On Section 200(3) of the CPC, he submits that the succeeding magistrate who took over the trial did not explain to him his right to recall witnesses, and that this provision is mandatory. He cites several Court of Appeal decisions holding that failure to comply renders the trial a nullity. 24.He contends that because the succeeding magistrate had not seen or heard the prosecution witnesses, he lacked jurisdiction to determine the matter, and therefore the conviction is based on unsafe evidence. He argues that a retrial would not be appropriate as it would allow the prosecution to fill gaps in its case. 25.On the elements of defilement, he states that penetration, age of the complainant, and positive identification must all be proved beyond reasonable doubt, and that conviction must rest on the strength of the prosecution’s case, not on weaknesses in the defence. 26.He argues that penetration was not conclusively proved because the complainant could not describe the act, the medical examination four days later showed no recent injuries to the genitalia, the hymen was torn but not freshly, and the complainant admitted to previous sexual encounters. He cites case law that a broken hymen alone does not prove recent penile penetration. 27.On identification, he notes that the complainant herself said she did not know the appellant, she did not disclose the alleged defilement at the earliest opportunity to her mother, cousin, or the shopkeeper, and she went missing for three days without reporting the incident. He argues that her behaviour is inconsistent with that of a child who has just experienced a traumatic defilement. 28.He submits that the prosecution should have conducted forensic evidence such as DNA testing on the alleged condom or leaves, and the absence of such evidence casts doubt that should benefit the appellant. 29.On the credibility of prosecution witnesses, he points to contradictions in the father’s testimony (PW2), including whether the complainant was naked or brushing her clothes, whether he saw the appellant wiping his penis or did not know what he was wiping, and why the initial police report was for a missing child rather than defilement. 30.He notes that the cousin Wanza was not called as a witness, and argues that her absence suggests her testimony would have been adverse to the prosecution. 31.He argues that the trial magistrate wrongly drew adverse conclusions from minor contradictions in the defence case, even though the defence was not challenged by the prosecution, and that the accused has a constitutional right to remain silent under Article 50(2)(i) of the Constitution. 32.On the right to legal representation and mitigation, he states that after conviction, he asked for an adjournment to attend court with his lawyer, but the trial magistrate proceeded to sentence him to 20 years without affording him an opportunity to mitigate. 33.He submits that this violated his rights under Articles 47, 50(1), 50(2)(g) and (h), 25(c), and 27(1) of the Constitution, as well as Section 43(1) of the Legal Aid Act. He cites Court of Appeal authority holding that such a violation vitiates the trial and renders the conviction and sentence null and void. 34.On the sentence, he argues that the mandatory 20-year sentence under Section 8(3) of the Sexual Offences Act fetters judicial discretion and has been declared unconstitutional in several High Court petitions. He submits that the appellate court has power to interfere where a sentence is excessive, based on wrong principles, or unconstitutional. 35.He prays that in the event the court is not persuaded to quash the conviction, it should review the sentence downwards or impose a non-custodial sentence for the remainder of the term, considering the circumstances of the case and the time already served. 36.Finally, he prays that his appeal be allowed, the conviction quashed, and the sentence set aside. 37.The respondent opposes the appellant’s appeal against both the conviction and the sentence of twenty years imprisonment for defilement of a thirteen-year-old child contrary to section 8(1)(3) of the Sexual Offences Act. 38.The prosecution argues that all three essential ingredients of defilement—age of the victim, penetration, and positive identification—were proved beyond reasonable doubt. 39.Regarding age, the victim’s age was not contested; she testified that she was thirteen years old and in class six, her parents confirmed her age, and an age assessment report produced in court corroborated this. 40.On penetration, the victim testified using the euphemism that the appellant “slept on her” and gave her two hundred shillings; the court accepted such language as common for child victims of sexual abuse. 41.The victim’s father testified that he found the appellant and the victim in a bush, with the victim in her underwear patting her clothes and the appellant wiping his penis, which corroborated the victim’s account. 42.Medical evidence showed that the victim’s hymen was torn, consistent with the history of defilement by the appellant. 43.On identification, the victim knew the appellant as “Musembi” and recognised him; she confirmed that he gestured to her from his workplace to come to where he was. 44.The victim’s father was an eyewitness who saw both the appellant and the victim at the scene, further confirming the appellant’s identity. 45.The appellant himself confirmed during his testimony that his name is Benard Musembi Mutinda, matching the name the victim used. 46.The appellant’s claim that the complainant was not the victim is false, as the record clearly shows the victim testified as PW1. 47.The appellant’s allegation of a grudge with the victim’s family was not supported by any evidence tendered in court, and the prosecution proved the defilement regardless. 48.The appellant’s assertion that the prosecution’s evidence was hearsay is incorrect because the victim herself and an eyewitness testified directly. 49.The appellant’s sworn defence and alibi were a mere denial; he called a relative as a witness, but neither produced any corroborating evidence such as documents or independent witnesses. 50.The appellant never raised the alibi defence when recording his statement, and calling his relative was described as an afterthought and a desperate attempt to escape the charge. 51.On sentencing, section 8(3) of the Sexual Offences Act provides for a minimum sentence of twenty years imprisonment for defilement of a child between twelve and fifteen years, so the trial court’s sentence was proper and lawful. 52.The prosecution therefore urges the High Court to uphold both the conviction and the sentence of the appellant. 53.I have carefully re-evaluation the entire evidence on record, as is the duty of a first appellate court as established in Okeno v Republic [1972] EA 32 and Mark Oiruri Mose v Republic [2013] eKLR. 54.The issues for determination in this appeal are as follows;i.Whether the prosecution proved the essential ingredients of the offence of defilement beyond a reasonable doubt.ii.Whether the trial was rendered a nullity due to non-compliance with Section 200(3) of the Criminal Procedure Code;iii.Whether the appellant’s rights to a fair trial and legal representation were violated at sentencing; andiv.Whether the sentence of twenty years imprisonment was manifestly excessive or unconstitutional. 55.The appellant raised a preliminary issue regarding the trial court’s alleged non-compliance with Section 200(3) of the Criminal Procedure Code. 56.There is no indication that the appellant suffered prejudice by the said omission. To hold otherwise would be tantamount to elevating procedural technicalities over substantive justice. 57.On the issue of legal representation, the appellant contends that after conviction, the trial court denied him an opportunity to mitigate and failed to grant him an adjournment to appear with a lawyer. 58.A review of the record shows that the trial court did, in fact, afford the appellant a chance to mitigate before sentence was passed. 59.The appellant has not placed any evidence before this court to prove that he requested for an adjournment to secure legal representation and that this request was denied. 60.The right to legal representation under Article 50(2)(g) and (h) of the Constitution is not absolute and is typically invoked before the commencement of the trial, not after a conviction has already been entered. 61.The court is therefore not persuaded that there was a violation of the appellant’s right to a fair trial as alleged. 62.The first two grounds raised by the appellant, which appeared to question the complainant’s relationship to the victim and argue that the evidence was hearsay, are also without substance. 63.The complainant testified directly as PW1 as the victim of the offence, and her testimony was therefore direct evidence, not hearsay as defined under Section 63 of the Evidence Act. Her father (PW2) was an eyewitness to the aftermath of the incident, and his testimony was also direct. 64.Turning to the substantive issues, the prosecution was required to prove three key ingredients beyond reasonable doubt: the age of the victim, the fact of penetration, and the positive identification of the appellant as the perpetrator. 65.The complainant, M.M.K., testified that she was thirteen years old and in class six at the time of the incident. 66.This testimony was corroborated by her parents, and an age assessment report was produced in court confirming her age. 67.The appellant did not contest the age of the complainant at trial, and this court finds that the prosecution proved beyond any doubt that the child was aged thirteen years, falling squarely under the protection of Section 8(3) of the Sexual Offences Act. 68.With respect to penetration, the complainant’s testimony was clear and unequivocal. 69.She testified that the appellant called her, took her to the bushes, removed her clothes and his, and then “slept on her,” a euphemism commonly accepted by courts for child victims of sexual violence. 70.Her evidence on this element was direct and remained unshaken during cross-examination. 71.The trial court was entitled to rely on her testimony alone as the primary evidence of penetration, especially given that Section 124 of the Evidence Act allows a court to convict on the uncorroborated evidence of a child victim if the court, for reasons recorded in the proceedings, believes the child is telling the truth . 72.The trial court in its judgment expressed satisfaction that the minor was telling the truth. Furthermore, the prosecution provided corroborative evidence through PW2, the complainant’s father, who testified that he followed the complainant when she delayed returning from an errand. 73.He found the appellant in the bushes wiping his penis while the complainant was nearby, brushing off her clothes. 74.This evidence strongly supports the complainant’s narrative. Additionally, the medical evidence from PW5, the clinical officer, while noting that the hymen was torn but not freshly, also noted a foul-smelling discharge from the vagina. 75.The absence of fresh, penetrating injuries four days after the incident does not negate the fact of penetration, as a torn hymen and discharge are consistent with a history of defilement. 76.The clinical officer’s findings corroborated the complainant’s account of a sexual act. 77.On the issue of identification, the appellant argues that he was not positively identified. This court disagrees. 78.The evidence on record shows that this was a case of recognition, not the identification of a stranger. 79.The complainant knew the appellant before the day of the incident. She testified that the appellant was known to her as "Musembi," a name the appellant himself confirmed during his defence. She stated that on the material day, the appellant gestured to her from his workplace, which was a shop, to come to where he was. 80.This interaction occurred during the daytime, in broad daylight. The complainant’s father, PW2, also came upon the scene and saw the appellant with the victim in the bushes. 81.The appellant’s identity was therefore not in doubt as he was positively recognized by the complainant and seen at the scene by PW2. 82.The defence of alibi raised by the appellant, that he was busy delivering cement on a motorcycle, was a mere denial that was properly rejected by the trial court. 83.The appellant did not provide any independent corroboration for his alibi, such as receipts or delivery notes, and the court was entitled to prefer the clear and consistent testimony of the prosecution witnesses over his bare assertion. 84.Finally, the appellant challenges the sentence of twenty years imprisonment as harsh, excessive, and unconstitutional for allegedly fettering judicial discretion. 85.Section 8(3) of the Sexual Offences Act provides that a person convicted of defiling a child aged between twelve and fifteen years is liable to imprisonment for not less than twenty years. 86.The appellant was sentenced to exactly twenty years, which is the prescribed minimum sentence. 87.The argument that mandatory minimum sentences are unconstitutional was laid to rest by the Supreme Court of Kenya. 88.The Supreme Court held that it is Parliament, not the Judiciary, that sets the parameters for sentencing for each crime, and that courts are required to impose sentences in accordance with the provisions of the law as enacted by Parliament . 89.The court further held that the mandatory nature of the minimum sentence under the Sexual Offences Act is not unconstitutional, as it does not entirely remove judicial discretion; the court retains the discretion to impose a higher sentence, but cannot go below the statutorily prescribed minimum. 90.Consequently, the sentence of twenty years imposed by the trial court was entirely lawful and proper given the circumstances of the case. There is no basis for this court to interfere with it. 91.Having re-evaluated the evidence afresh, this court finds that the prosecution proved its case against the appellant beyond any reasonable doubt. 92.The conviction was safe and the sentence was lawful. The appeal is accordingly dismissed in its entirety. 93.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF JUNE, 2026.A. N. ONGERIJUDGEIn the presence of:No appearance for the AppellantNo appearance for the RespondentChrispin – Court Assistant