https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12134

Mutua v Republic (Criminal Appeal E030 of 2025) [2026] KEHC 12134 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12134 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E030 of 2025 JK Biomdo, J July 30, 2026 Between Samuel Wambua Mutua Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon.E Mbicha (PM) in Makindu SPM (SO) Case No. E034 of 2022) Judgment 1.The appellant herein, Samuel Wambua Mutua alias Safari was convicted and sentenced to 15 years imprisonment by the Senior Principal Magistrates’ Court at Makindu for two counts of the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the offence are as follows:i.Count I - on diverse dates between 9 May 2022 and 10 May 2022 at Makindu Sub-County within Makueni County, the appellant intentionally and unlawfully committed an indecent act by touching the anus of PMM a child aged 9 years with his penis.ii.Count II- on diverse dates between 9 May 2022 and 10 May 2022 at Makindu Sub-County within Makueni County, the appellant intentionally and unlawfully committed an indecent act by touching the anus of INS a child aged 7 years with his penis. 2.Aggrieved by the conviction and sentence by the trial court, the appellant filed the present appeal where he raised the following grounds;i.That the trial court erred in law and fact by convicting the appellant on evidence that did not meet the minimum thresh hold of beyond reasonable doubt.ii.That the trial court erred in law and fact by relying on trumped up charges and fabricated stories.iii.That the trial court erred in law and fact by failing to find that the prosecutions case was marred by contradictions and inconsistencies that made the conviction unsafe.iv.That the trial court erred in law and fact by awarding a sentence that was manifestly excessive contrary to the Sentencing Policy Guidelines. 3.The prosecution case was that PMM complainant number one who testified as PW2, stated that he was a grade 1 pupil. He testified that he knew the appellant by the name Safari and identified him in court. He stated that he and INS, complainant number two (PW4) were playing in a tree when the appellant called them to his compound on the pretext that he wanted to show them something. That the appellant asked them to get inside after which he locked door, held them by hands and covered their mouths with handkerchiefs. He described that inside the house, he saw a sofa set, a mattress and clothes. 4.He further stated that the appellant removed his trouser and undergarment, made him bend, applied saliva in his (appellant’s) penis and PW2 anus, and inserted his penis in his anus. When he tried to turn, the appellant hit him with his legs which made him fall down, he laid on his stomach and inserted his penis on his anus. After he had finished, he took INS (PW4) and did the same to him. He then showed them pornographic material on his phone and told them not to report. He together with PW4 went outside the house and continued playing. 5.The following day, the appellant found him playing football with other children, called him and told him not to report the incident. He then attempted to give him Ksh.100 but he declined and he together with PW4 reported the incident that had happened the previous day to PW4’s mother. He and INS were taken to the village elder, then the hospital where they were examined and the police station. 6.The second complainant, INS who testified as PW4, stated that he was 7 years old and reiterated what PW2 had said adding that in his case, appellant made him lie on the bed before inserting his penis on his anus after applying saliva. He further testified that the following day, the appellant found them playing, called them but they refused. They ran away and reported the matter to his mother, LWK , PW3. They were then taken to M ,the village elder, the assistant chief, the hospital for examination and to the police for reporting. He testified that he was together with PW2 when the incident occurred at the appellant's house and the the appellant defiled both of them. He further stated that he knew the appellant also known as safari since he lived close to their home. 7.PW3, LWK testified that she was the mother of INS complainant two, who was born on 1 March 2015 as per his birth certificate. On 11 May 2022, at 5pm she was heading home when saw PMM (PW2) and INS (PW4) running towards her. PMM reported to her what had happened the previous day, she took them to the village elder Martha and they repeated the same to her. She then went to look for PMM’s mother (PW1) and found her at her home. 8.She told him what she had been told by the two children and they went together to the village elder. PW1 on hearing the incident, screamed which attracted members of the public. They went and apprehended the appellant who was hiding in the toilet inside his house, took him to Makindu police station before taking the two children to Makindu Sub County hospital for examination. She stated that she knew the appellant who was known as safari. 9.PW1, CNN testified that she is the mother of PMM who was born on 11 November 2012 as per his child health card. It was her evidence that on 11 May 2022, at about 4pm PW3 went to her house and told her what the appellant had done to the two children the previous day in his house which was approximately 50 meters from her house. Together, they went to the village elder and then to the appellant’s home who was then apprehended and taken to Makindu police station. They then went to the hospital where PMM and INS was examined. She identified the appellant as Safari. 10.PW6, Mirriam Nyakio Maina, a clinical officer at Makindu Sub County hospital examined PMM and INS on 11 May 2022 after they were presented and reported to have been sodomized on 9 May 2022. On examination, she did not find evidence of anal penetration against PMM but found pus and worms which she stated could be caused from an infection of the abdomen. As regards INS, she also did not find evidence of anal penetration but found epithelial cells and that outside the skin, it appeared pressure had been applied. She produced P3 forms and PRC forms for each of the two victims. 11.PW5 P.C Elizabeth Maina the investigating officer attached at Makindu Police station testified that the appellant was apprehended by members of the public taken to the police station where he was arrested for sodomy. That after conclusion of investigations. The appellant was charged with the offence. 12.At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence. In defence, the appellant gave unsworn testimony where denied committing the offense and stated that on the the particular day, he went home from work, took maize to the posho mill and on coming back, he found a crowd of people alleging that he had done bad things to the children. He claimed that the children had been forced to implicate him. 13.In its judgement dated 13 February 2025, the trial court found that the prosecution had proved its case beyond reasonable doubt and convicts the appellant who was subsequently sentenced to 15 years imprisonment. Submisions 14.The appeal was disposed by way of written submissions. The appellant filed and relied on his submissions dated 22 May 2026. On ground 1, the appellant contended that he was convicted for the offence of defilement which is different from offence charged of committing an indecent act to a child. He argued that the evidence in the P3 form indicated that he was accused on defiling PMM which led to a confusion as to what exactly he was facing. He stated that the charge offended Section 134 of the Criminal Procedure Code and urged the court to find so and quash the conviction. He cited the cases of Nyamai Musyoka vs Republic (2014) eKLR and Muthoni alias Sonko vs Republic Criminal Appeal No. E028 of 2023 in support of his contention that the charge was defective. 15.On grounds two and three, he submitted that the prosecution did not prove it case beyond reasonable doubt as required under Section 107 of the Evidence Act. He further submitted that the trial court failed to scrutinize the evidence presented which was based on hearsay and that PW2 and PW4 testified under duress, were beaten, threatened and gave fabricated testimonies which should not be relied on. He urged the court to find in his favour and acquit him. 16.The Respondent opposed the appeal, filed and relied on submissions dated 13 May 2026 by Ms Jacqueline Omol, learned Counsel for the Respondent. The Respondent submitted that the charge sheet clearly contained two counts under section 11(1) of the Sexual Offences Act, with the dates, place, children and acts specified. It argued that the health card and birth certificate proved that PMM and INS were children aged nine (9) and seven (7) years respectively. On the acts charged, the Respondent relied on the mutually supporting evidence of the two children, their recognition of the appellant as Safari, and their account of the substance applied, the restraint used and the essential conduct alleged. 17.The Respondent contended that penetration and physical injury were not ingredients of an indecent act. It argued that the children remained consistent on material facts and that the appellant’s assertion of coaching was unsupported. 18.On sentence, the Respondent submitted that sentencing is a matter of discretion by the trial court which should not be interfered unless found to be unlawful, manifestly excessive, harsh or severe in light of the nature of the offence. He cited Bernard Kimani Gacheru vs Repbulic (2002) eKLR. He submitted that none of the above factors were demonstrated and urged the court to uphold the conviction and sentence. Analysis and determination 19.This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32 and Mark Mose vs Republic (2013) eKLR. 20.The court of appeal, in Kiilu & Another v Republic [2005]1 KLR 174, 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; 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.” 21.Having considered the grounds of appeal, the evidence adduced in the lower court, the judgement by the trial court and submissions by the parties, I find the main issues for determination to be;i.Whether the prosecution proved its case beyond reasonable doubtii.Whether the sentence was manifestly harsh and excessive Whether the prosecution proved its case beyond reasonable doubt 22.The appellant was charged with two counts of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. Section 11 (1) of the said Act provides that 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. 23.“Indecent act” is defined under Section 2 of the Sexual Offences Act as an unlawful intentional act which causes any contact between any part of the body of a person with the genital organs, breasts or buttocks of another; or exposure or display of any pornographic material to any person against his or her will, but does not include an act which causes penetration. 24.In this case, specific ingredients of the offence that the prosecution needed to prove beyond doubt are proof that the victim was a child within the meaning of the Children’s Act; (under the age of 18 years), proof that the appellant was positively identified as the assailant, and proof that the appellant touched the anus of the complainant’s with his penis . See Bambare vs Republic (Criminal Appeal E024 of 2025) [2026] KEHC 7646 (KLR). Proof of age of the victim 25.The age of a victim may be proved in various ways. In Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR, the court stated:“... 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 reliable.” 26.The PW1, CNN testified that she is the mother of PMM who was born on 11 November 2012 as per his child health card which was produced as exhibit 2. PW3, LWK testified that she was the mother of INS complainant two, who was born on 1 March 2015 as per his birth certificate which was produced as exhibit 1. The appellant did not challenge the authenticity of the child health card or birth certificate and the court finds no reason to doubt it. The court finds that age of the two victims was proved beyond any reasonable doubt. Positive identification of the appellant as the assailant 27.Identification can be made in various ways, including by recognition. In the case of Anjononi & Others vs Republic (1980) KLR 59, the court of appeal stated as follows: -“...recognition of an assailant is more satisfactory, more reassuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.” 28.Both victims, PW2 and PW4 identified the appellant as the perpetrator of the offence. They recognized him since he was their neighbour and known to them, they had engaged him in a conversation before, during and after the incident, and gave his name as Safari. PW1 and PW3 also confirmed that the appellant was a neighbour who lived approximately 50 meters away and was also known as Safari. These facts were not disputed or contested and I find that there was positive identification Whether the appellant committed an indecent act. 29.The charge alleged that on diverse dates between 9 May 2022 and 10 May 2022, the appellant touched the victim’s anus with his penis. The said particulars fit within the definition of indecent act as per Section 2 of the Sexual Offences Act. 30.The appellant contested the charge sheet as drafted alleging that it was defective since the evidence made reference to defilement while he was convicted of committing an indecent act which are two distinct offences. He further submitted that the evidence presented before the trial court was based on hearsay and that PW2 and PW4 testified under duress, were beaten, threatened and gave fabricated testimonies which lowered their credibility. 31.As regards the charge sheet, the court finds that it was properly framed in compliance with the law and that the appellant was convicted on the offence charged. The contention by the Appellant is that the P3 forms states that he was reported to have defiled the victims which information was corroborated by PW5 and PW6. The court has examined the P3 forms and evidence on record and finds that the P3 forms recorded what was reported to the police station. However, investigations established that was no evidence of penetration which informed the charge of committing an indecent act as opposed to defilement. The court finds no fault in that since investigation is a process and the outcome may not always support allegations made or what was reported initially. 32.On the issue of whether the indecent act was proved, PW 2 and PW4 narrated how they were lured by the appellant to his house who removed their clothes and inserted his penis on their anus, starting with PMM then INS. Both were present and corroborated each other. Even though there was no evidence of penetration, their evidence was consistent, cogent and corroborated each other. Additionally, PW6 on examination of INS, found that the outside skin of his anus appeared as though pressure had been applied giving further credence to their testimonies. The court further notes that the medical examination was conducted two days after the incident and as stated by PW6, anal tissues are elastic and easily return to their shape/form which explains the finding. 33.Voire dire was properly conducted before the testimony by PW2 and PW4 who were all children on tender years and hence section 19 (1) of the Oaths and Statutory Declarations Act was duly complied with. No evidence of duress or beating or threats on the victims was alleged during trial or provided at any particular time. Further, PW2 and PW4 were victims who were present simultaneously and witnessed the incident and hence their evidence was not hearsay as alleged. Besides, their evidence was unshaken during hearing and remained consisted all through the case. 34.The court notes that there were a few variances in the testimonies of witnesses generally. However, variances are expected in any trial and in this case, they were minor and did not go to the root of the case or to discredit any evidence. The court of appeal in case of Richard Munene vs Republic (2018) eKLR, had this to say regarding contradictions or inconsistency in the evidence of the prosecution witnesses:“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law, however, that it is not every flirting contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that the accused person will be entitled to benefit from it.” 35.The court finds that there was sufficient evidence to prove both alternatives describes in Section 2 of the Sexual Offences Act as constituting indecent act. However, since the charge sheet was particular to the ingredient of the offence, it sufficed that the conviction was based on that. The court finds that all ingredients of the offences were proved beyond reasonable doubt and upholds the conviction by the trial court. Whether the sentence was manifestly harsh and excessive 36.The appellant submitted that the prescribed minimum sentence under section 11(1) of the Sexual Offences Act is ten (10) years and that the term of fifteen (15) years was harsh and excessive in the circumstances. 37.Sentencing is an exercise of discretion by the trial court and the High Court would not interfere with the sentence imposed unless it finds that it was illegal, unlawful or founded on a wrong principle of law. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” 38.Mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic vs Joshua Gichuki Mwangi and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR. 39.Section 11 (1) of the Act provides for a minimum mandatory sentence of ten years and hence the sentence of 15 years in lawful and properly made. The trial court considered all relevant factors before passing sentence, including the appellant’s mitigation, the nature of the offence, pre-sentence report. Additionally, it has not been demonstrated how the trial court erred in sentencing to warrant interference. 40.As regards execution, the court note that sentence commenced on 26 February 2025 which is the day it was passed. Section 333(2) of the Criminal Procedure Code provides that time spent in custody shall be deducted from the sentence. See Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR) where Kihara Kariuki PCA, M’Inoti and Murgor JJA explained:“‘Taking into account’ the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody.” 41.The record shows that the appellant was arrested on 11 May 2022 and remained in custody until 7 February 2023 when he was released on bond. This translates to 272 days. The court further notes that the appellant’s bond was canceled on 13 February 2025 after delivery of judgement and he was taken into custody. Final Orders 42.In view of the above, the court makes the following orders:i.The appeal against conviction and sentence lacks merit and is dismissed accordingly.ii.The sentence imposed by the trial court shall run from 13 February 2025.iii.The period spent in pre -trial custody translating to 272 days shall be deducted from the appellant’s sentence. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE