https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7840

Mutua v Republic (Criminal Appeal E027 of 2025) [2026] KEHC 7840 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7840 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E027 of 2025 AN Ongeri, J June 4, 2026 Between Joshua Mutua Appellant and Republic Respondent (Being an appeal from the Judgment of Hon. S KANDIE (RM) in Mavoko S O Case No. E032 of 2023 delivered on 6/3/2024) Judgment 1.The appellant, Joshua Mutua, was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, with the alternative count of committing an indecent act with a child. 2.The particulars of the charge were that between 6th March and 19th April 2023, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of a fifteen-year-old child named A.A.O. 3.The appellant denied the charges, and the matter proceeded to hearing. The minor testified that she was sixteen years old, had met the appellant on 11th March 2023, exchanged numbers with him, and later stayed in his house for two months acting as a wife, during which time the appellant had sex with her. 4.She stated she had dropped out of school due to lack of fees and was later taken to a children’s home after her mother reported the matter to the police. 5.The mother, Christine Ndinda Mbithi, testified that she sent the minor to a shop on 6th March 2023, the minor disappeared and switched off her phone, later returned, and then disappeared again after being seen inside a motor vehicle driven by the appellant. 6.The mother reported the matter to the chief, later learned that the minor wanted to return home due to mistreatment, sent money for her return, but the minor disappeared again to live with the appellant. 7.The mother eventually coordinated with the chief to have the minor arrested and taken for medical examination. 8.John Njuguna, a medical examiner, testified that upon examination on 19th April 2023, the minor had no injuries on the body or outer vagina, but her hymen was broken with an old scar, and she was neither pregnant nor had any sexually transmitted infection. 9.The investigating officer, PC Monica, testified that she recorded statements, escorted the minor for examination, obtained necessary documents, and charged the appellant. 10.In his defence, the appellant testified that the charges were not true, stating he met the minor at a kiosk in March 2023 while taking tea, they exchanged numbers, and the minor asked him to help secure employment, which he did, but she failed to produce a national identity card. 11.The trial court considered the evidence and found that the prosecution had to prove three elements, that is the age of the complainant, identification of the appellant and penetration. 12.Regarding age, the minor testified she was sixteen, and a birth certificate confirmed her date of birth as 15th November 2007, thus proving that element. 13.On identification, the minor knew the appellant before the incident, knew him as Joshua Mutua, recognized him in the dock, and had lived with him for two months, establishing identification by recognition. 14.On penetration, the minor testified she had sex with the appellant multiple times during the two months she lived at his house. 15.The medical evidence confirmed an old scar on the hymen, indicating penetration had occurred. 16.The trial court rejected the appellant’s submission that he reasonably believed the minor was above eighteen years old, noting that nothing in the evidence portrayed the minor as conducting herself as an adult, and the fact she had dropped out of school did not make her an adult. 17.The court observed that the appellant took the minor, enticed her with the motor vehicle he was driving, took her to his house, had sex with her multiple times, and lived with her as a wife, and that the appellant knew or ought to have known he had sex with a minor. 18.The court expressed concern about the mother’s conduct in raising the minor but concluded that all elements of defilement had been proved. 19.Consequently, the trial court convicted the appellant for the main charge of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act under section 215 of the Criminal Procedure Code. 20.The trial court sentenced the appellant to 15 years imprisonment. The appellant has appealed to this court against both the conviction and the sentence on the following grounds;i.That the trial magistrate failed to evaluate the prosecution’s evidence and did not find that the appellant was entitled to the defence under Section 8(5)(a) and (b) of the Sexual Offences Act No. 3 of 2006, as per Eliud Waweru Wambui v Republic [2019] eKLR.ii.That the trial magistrate convicted the appellant and denied him the said defence despite the complainant’s evidence showing it was likely the appellant believed she was above 18 years as provided by law.iii.That the trial magistrate erred by convicting the appellant when the complainant testified that her mother had authorized the love between them, thus entitling the appellant to the defence under Section 8(5) of the Sexual Offences Act No. 3 of 2006.iv.That the trial magistrate stage-managed the prosecution’s case and denied the appellant’s defence under Section 8(5)(a) & (b) of the Sexual Offences Act No. 3 of 2006 by failing to consider that the complainant was over 16 and near 18 years, entitling him to the statutory defence.v.That the appellant relies on R v Howard [1965] 3 All ER 684 at 685, where the court held that in a rape case involving a girl under 16, the Crown must prove lack of consent or inability to consent, noting that many girls know what it is about and can properly consent.vi.That the trial magistrate erred in law and fact by mechanically applying Section 333(2) of the Criminal Procedure Code, failing to order that the sentence run from the date of arrest, as held in Ahamad Abolfathi Mohammed & Another v Republic (2018) eKLR. 21.The parties filed written submissions as follows; The appellant submitted that he is entitled to the statutory defence under section 8(5) of Kenya’s Sexual Offences Act, which applies where a child deceived the accused into believing she was over 18 and the accused reasonably held that belief. 22.He contends that the two elements of the defence which are deception and reasonable belief, should be read disjunctively, not conjunctively, otherwise subsection 8(6) would become redundant. 23.Citing Charo v Republic, he states that the burden on the appellant is only on a balance of probabilities, assessed subjectively based on facts known to the accused. 24.He points to the complainant’s testimony that her mother was “okay” with her going to his house and that she stayed with him “as husband and wife,” indicating parental consent and a mutual, ongoing relationship. 25.He argues the complainant was not a victim under Black’s Law Dictionary because she was not harmed by the relationship and appeared in court under duress rather than as a genuine complainant. 26.Relying on Eliud Waweru Wambui v Republic, he contends that when a minor behaves as an adult—seeking out a sexual relationship and continuing it over time—it becomes unfair to impose a lengthy prison sentence. 27.He concludes by invoking Article 27(1) and (2) of the Constitution, asking the court to grant him the statutory defence under section 8(5) of the Sexual Offences Act. 28.The respondent in its submissions opposed the appeal against both conviction and sentence for defilement of a 15-year-old child contrary to Section 8(1)(4) of the Sexual Offences Act. 29.The prosecution argues that all essential ingredients of defilement i.e age, identification, and penetration were proved beyond reasonable doubt. 30.On age, the complainant’s mother testified the child was born on 15 November 2007, the victim confirmed she was 16, and a clinical officer and birth certificate corroborated this, with no dispute raised during cross-examination. 31.On identification, the victim knew the appellant well, having stayed at his house for extended periods, and the appellant admitted they met, exchanged contacts, and communicated by phone. 32.On penetration, the clinical officer testified that the hymen was broken with an old scar, consistent with the victim’s account of repeated sexual encounters. 33.The prosecution rejects the section 8(5) defence, noting the appellant never challenged the victim’s age during trial and admitted in his defence that his efforts to find her employment failed because she lacked a national ID card which demonstrated his knowledge that she was a minor. 34.The respondent further submitted that the appellant failed to call corroborating witnesses, such as the alleged employer, and is procedurally barred from raising this defence for the first time on appeal, as it was not pleaded at trial. 35.The prosecution dismisses the claim that the victim’s mother consented to the relationship as false, since the mother denied this, and notes that a child under 18 cannot legally consent in any event. 36.Regarding sentence, the trial court imposed 20 years’ imprisonment, the mandatory minimum under Section 8(4) for defilement of a child aged 16 to 18 years. 37.The prosecution concedes only that time spent in custody before sentencing should be considered under Section 333(2) of the Criminal Procedure Code, but otherwise urges the High Court to dismiss the appeal as the trial court’s decision was sound. 38.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 as required by Section 8(1) of the Sexual Offences Act.ii.Whether the appellant is entitled to the statutory defence under Section 8(5) of the Sexual Offences Act.iii.Whether the sentence of 15 years imprisonment was proper. 39.As a first appeal, this court has re-evaluated the evidence afresh as required by Okeno v Republic [1972] EA 32, and upholds the conviction but revises the sentence to clarify the commencement date. 40.The prosecution proved all elements of defilement beyond a reasonable doubt. The complainant’s birth certificate proved she was aged 15 years when the offence was committed between 6th March and 19th April 2023, satisfying Sections 8(1) and 8(3) of the Sexual Offences Act. Age is a critical component that must be proved the same way as penetration. 41.Identification was proper because the complainant knew the appellant before the incident, lived with him for two months, and the appellant admitted meeting her. 42.This was identification by recognition, which is more reliable than identification of a stranger, and the evidence was scrutinized and found free from error. 43.Penetration was proved by the complainant’s unequivocal testimony that the appellant had sex with her multiple times, corroborated by medical evidence showing her hymen was broken with an old scar consistent with repeated penetration. 44.Under the proviso to Section 124 of the Evidence Act, a court may convict on the victim’s evidence alone if it believes the victim and records the reasons for that belief. 45.The defence under Section 8(5) of the Sexual Offences Act fails. 46.Although the elements of deception and reasonable belief are to be read disjunctively, the appellant took no steps to ascertain the complainant’s age as required by Section 8(6). 47.The complainant did not actively deceive the appellant about her age, and the appellant’s failure to ask for identification or a national identity card negates any reasonable belief that she was an adult. 48.The sentence of 15 years imprisonment is lawful under Section 8(3) of the Sexual Offences Act and not manifestly excessive, as where the law prescribes a minimum sentence, the court has no discretion to impose a lesser term. 49.However, the trial court failed to properly consider the pre-trial period as required by Section 333(2) of the Criminal Procedure Code. 50.Following Ahamad Abolfathi Mohammed & Another v Republic (supra), the court must take into account the period spent in custody before sentencing and reduce the sentence proportionately, not merely state that the period has been considered while ordering the sentence to run from the date of conviction. 51.The appellant was arrested on 19th April 2023 and remained in custody until sentencing. The 15-year sentence shall therefore run from 19th April 2023. 52.The trial court is ordered to compute the pre-trial period accordingly and issue a corrected committal warrant. 53.In all other respects, the appeal against conviction and sentence is dismissed, and the appellant shall remain in custody to serve the remainder of his sentence as hereby clarified. 54.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofThe Appellant present at Kitengela GK PrisonPC Mangare - StateChrispine - Court Assistant