https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12016

Mutune v Republic (Criminal Appeal E081 of 2025) [2026] KEHC 12016 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12016 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E081 of 2025 C Akaigwa, J July 29, 2026 Between Andrew Mutunga Mutune Appellant and Republic Respondent (Being an Appeal from the whole of the Judgment, Conviction and Sentence of Hon. J.M Gacheru (SRM) in Tawa Sexual Offences Case No. E017 of 2024, delivered on 13th November 2025) Judgment A. Background 1.The Appellant was charged with the offence of defilement, contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates in April 2024, at [Particulars withheld] Village, [Particulars withheld] Location, [Particulars withheld] Sub-County, Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of FMW, a child aged 17 years. 2.In the alternative, the Appellant was charged with committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge were that on the same diverse dates in April 2024, at the same location, the Appellant intentionally and unlawfully touched the vagina of FMW, a child aged 17 years, with his penis. 3.The Appellant pleaded not guilty to the charge, whereupon the matter proceeded to full trial. In support of its case, the prosecution called five (5) witnesses. At the close of the prosecution’s case, the Appellant was placed on his defence and elected to give sworn testimony. Upon considering the evidence adduced before it, the trial court, in a judgment delivered on 13th November 2025, found the Appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, convicted him accordingly, and sentenced him to fifteen (15) years’ imprisonment. 4.Aggrieved by both the conviction and sentence, the Appellant lodged the present appeal and challenges the decision of the trial court on the following grounds:a.That the learned trial Magistrate erred in law and in fact by failing to promptly inform the Appellant of his right to legal representation as guaranteed under Article 50(2)(g) and (h) of the Constitution, thereby occasioning a miscarriage of justice.b.That the learned trial Magistrate erred in law and in fact by failing to appreciate that the prosecution’s case was riddled with material inconsistencies, contradictions, and discrepancies, particularly regarding the complainant’s age.c.That the learned trial Magistrate erred in law and in fact by admitting and relying on the DNA Report as evidence linking the Appellant to the offence.d.That the learned trial Magistrate erred in law and in fact by finding that the prosecution had proved its case beyond reasonable doubt.e.That the learned trial Magistrate erred in law and in fact by relying on extraneous evidence and thereby shifting the burden of proof to the Appellant.f.That the learned trial Magistrate erred in law and in fact by failing to properly consider and analyse the Appellant’s defence, instead dismissing it perfunctorily.g.That the learned trial Magistrate erred in law and in fact by imposing a sentence that was manifestly harsh and excessive in the circumstances. 5.The Appellant consequently beseeches this Court to find merit in the appeal, interfere with both conviction and sentence, quash the conviction, set aside the sentence imposed by the trial court, and make such orders as the justice of the case may require. B. The Evidence in Brief 6.PW1, the complainant, testified that in April 2024 she encountered the Appellant at about 4.00 p.m. while walking along a road. According to her, the Appellant approached her from behind, exchanged greetings with her, and she thereafter proceeded to her aunt’s residence. At about 4.30 p.m., while returning home, she encountered the Appellant once again. She testified that upon seeing her, the Appellant approached and requested that she engage in sexual intercourse with him, a proposal which she declined. The Appellant then grabbed her, dragged her into some abandoned houses, forcibly removed her trousers and undergarments, and proceeded to have sexual intercourse with her without her consent. 7.The complainant stated that she did not immediately report the incident to anyone. However, towards the end of May 2024, after missing her menstrual period, she began to suspect that she was pregnant. In September 2024, she attended went to the hospital where a pregnancy test confirmed that she was pregnant. She maintained that she had no prior romantic relationship with the Appellant. By the time she testified before the trial court, she had already given birth and her child was approximately three months old. 8.In his sworn defence, the Appellant denied the allegation that the sexual encounter was forced. His version of events was that he and the complainant were involved in a consensual romantic relationship and that it was the complainant who had invited him on a date on the material day. He testified that the complainant frequently visited him and would occasionally cook for him. 9.The Appellant further stated that throughout the relationship he believed the complainant to be an adult, having been informed by her that she had dropped out of school. He also claimed that the complainant possessed a waiting card indicating that she was born in the year 2005, which would have made her an adult at the material time. No such waiting card was, however, produced before the trial court. In essence, the Appellant sought to avail himself of the defence provided under Section 8(5) of the Sexual Offences Act, namely that he reasonably believed the complainant to be over the age of eighteen years. 10.The appeal was canvassed by way of written submissions, with both parties duly filing their respective submissions for consideration by the Court. C. Issues for Determination 11.From the memorandum of appeal and the parties’ submissions, the Court distils the following issues for determination:i.Whether the prosecution proved the offence of defilement beyond reasonable doubtii.Whether the trial court improperly shifted the burden of proof to the Appellant, relied on extraneous matters, or failed to adequately consider the Appellant's defence.iii.Whether the Appellant's right to a fair trial was violated by the trial court's alleged failure to promptly inform him of his right to legal representation under Article 50(2)(g) and (h) of the Constitution.iv.Whether the sentence imposed was lawful, proportionate, and justified in the circumstances of the case. D. Legal Analysis 12.The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32, it was held that the Court is under a duty to subject the entire evidence on record to a fresh and exhaustive re-evaluation in order to arrive at its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 13.The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. i. Whether the prosecution proved the offence of defilement beyond reasonable doubt 14.The offence of defilement is founded on three essential ingredients, namely: the age of the complainant (who must be a minor), proof of penetration, and positive identification of the perpetrator. These elements are statutorily anchored under Section 8(1) of the Sexual Offences Act No. 3 of 2006, and it is trite that each must be proved beyond reasonable doubt before a conviction can be sustained (See George Opondo Olunga v Republic [2016] eKLR). 15.The complainant gave a clear and consistent account of the events of the material day, in which she stated that the Appellant forcibly grabbed her and had sexual intercourse with her without her consent. 16.On the other hand, the Appellant did not dispute the occurrence of a sexual encounter but instead asserted that he and the complainant were engaged in a consensual romantic and sexual relationship. Significantly, the biological consequence of that interaction is not in dispute. A DNA examination conducted in respect of the child born from the said encounter confirmed that the Appellant is the biological father. The Court will not belabour that point, as the scientific evidence speaks for itself and places the issue beyond any reasonable controversy. This Court therefore finds no difficulty in concluding that the prosecution discharged its burden on these two essential ingredients. 17.However, the gravamen of the Appellant’s case turns on the age of the complainant. It is his testimony that at the time of the alleged romantic and sexual relationship, he believed the complainant to be 18 years old. He further stated that he relied on a waiting card which, according to him, indicated that the complainant was born in 2005. 18.In his written submissions, the Appellant maintains that the prosecution case was riddled with inconsistencies, particularly in relation to the complainant’s age, which he contends was not proved beyond reasonable doubt. 19.This Court is therefore called upon to resolve a central question: whether, on the totality of the evidence, the complainant was a child within the meaning of the Sexual Offences Act. The Court’s finding on this issue will answer the question as to whether the offence proved is defilement or rape or whether, in fact, it was a consensual encounter between two adults. 20.The complainant testified that she was born on 4th September 2007, therefore she was about 16 years 7months at the time of the alleged offence. PW2, the complainant’s mother, however gave a different account, testifying that the complainant was born on 4th June 2009, which would place her at about 14 years 10months at the time of the incident. These material discrepancies on age are further complicated by the documentary evidence on record. A birth certificate produced during trial indicates the complainant’s date of birth as 17th September 2007, which would place her at 16 years 7 months. 21The Court pauses to note that the said document was obtained on 30th July 2025, long after the trial had substantially progressed. The Court further observes that on 31st December 2024, the trial court directed that an age assessment be conducted, yet no such report was ever placed before the Court. Similarly, although the prosecution indicated that it had in its possession a baptismal card, the same was never tendered in evidence. 22.The Appellant relies on these inconsistencies and omissions to submit that the age of the complainant was not proved beyond reasonable doubt. 23.The significance of proving age in sexual offence cases cannot be overstated, as the age of the victim not only determines whether the complainant falls within the statutory definition of a child but also directly informs the applicable sentencing framework under Section 8 of the Sexual Offences Act. 24.The Court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... 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 must be credible and reliable.” (emphasis added). 25.With regard to the complaint that the prosecution’s case was based on doubtful, questionable, inconsistent, contradictory and therefore untrustworthy evidence, the court in the case of Joseph Maina Mwangi v Republic Criminal Appeal No.73 of 1993 held inter alia that:In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence. 26.While there are some inconsistencies in the dates given by PW1, the complainant, and PW2, the complainant’s mother, one fact remains consistent across the evidence: the complainant was within the age bracket of 15 to 17 years at the time of the alleged incident. The birth certificate on record, being an official government document, indicates the complainant’s date of birth as 17th September 2007, which places her at approximately 16 years of age at the material time. 27.Although the Court notes that the said birth certificate was registered on 30th July 2025, at a stage when the trial was already well underway, there is no evidential basis laid before this Court to suggest that the document was fabricated or otherwise unreliable. In the absence of any material challenge to its authenticity, the Court is not persuaded to depart from the trial court’s finding on the issue of age. ii. Whether the trial court improperly shifted the burden of proof to the Appellant, relied on extraneous matters, or failed to adequately consider the Appellant's defence. 28.The Appellant contends that the trial court improperly shifted the burden of proof to them, thereby undermining the fairness of the trial. It is a cardinal principle of criminal law that the burden of proof in all criminal proceedings rests throughout upon the prosecution and never shifts to the accused person. The standard required is proof beyond reasonable doubt, as articulated in Miller v Minister of Pensions [1947] 2 All E.R. 372, and nothing short of that threshold will suffice to sustain a conviction:The degree of proof beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice. 29.An accused person bears no legal obligation to prove innocence, explain the prosecution’s case, or fill any perceived gaps in the evidence adduced by the State. (See Republic v Vivo & 2 others [2026] KEHC 7588 (KLR) 30.In determining the issue of whether the burden of proof was impermissibly shifted to the Appellant, this Court, sitting as a first appellate court, is enjoined to re-evaluate and re-analyse the entire evidence on record and draw its own independent conclusions. 31.From a careful reconsideration of the record, there is nothing to suggest that the burden of proof was at any point shifted to the Appellant. The learned trial magistrate properly directed himself on the law and evaluated the prosecution evidence against the defence put forward, as is required in criminal proceedings. The Appellant’s complaint, in essence, arises from the court’s reference to his own testimony within the broader assessment of credibility and factual consistency, which does not, in law, amount to a shift of the burden of proof. 32Ultimately, and upon independent evaluation of the evidence, this Court is satisfied that the prosecution discharged its burden of proof beyond reasonable doubt. The conviction was founded on the strength of the prosecution case and not on any failure by the Appellant to prove his innocence. Accordingly, no miscarriage of justice has been demonstrated on this ground. 33.The Appellant further submits that the trial court failed to consider his defence. From the record, this Court notes that the Appellant expressly invoked the provisions of Section 8(5) of the Sexual Offences Act. That section provides a defence where it is shown that the complainant misled the accused into believing that he or she was above eighteen years at the time of the alleged offence, and that the accused reasonably held such belief. 34.Section 8(6) further clarifies that the reasonableness of such belief must be assessed in light of all the surrounding circumstances, including any steps taken by the accused to ascertain the complainant’s age. 35.The High Court in Mwangi v Republic [2026] KEHC 1724 (KLR) had this to say regarding the defence contemplated under Section 8(5):The Mistake of Age Defence under Section 8(5)) is a defence to a charge of defilement if the accused proves that:i.The child deceived the accused: The child (minor) actually deceived the accused person into believing they were over 18 years old at the time of the offence.ii.Reasonable belief: The accused person reasonably believed that the child was over the age of eighteen years. Requirements for the Defence (Section 8(6)).The "reasonable belief" is not simply a claim of ignorance. The court will determine the validity of this belief by looking at all surrounding circumstances, specifically the steps the accused person took to ascertain the age of the complainant. 36.In the circumstances, the evidential burden lay upon the Appellant to lay a proper basis for the defence he advanced, which he failed to discharge. In his sworn testimony, the Appellant merely alluded to a waiting card which he claimed indicated that the complainant was born in 2005, and therefore over 18 years at the material time. However, that alleged documentary evidence was never produced before the trial court, nor was its existence sufficiently demonstrated to enable the Court to place any probative value on it. iii. Whether the Appellant's right to a fair trial was violated by the trial court's alleged failure to promptly inform him of his right to legal representation under Article 50(2)(g) and (h) of the Constitution. 37.The appellant claims that his right to legal representation was also violated. Article 50(2)(g) and (h) of the Constitution in this respect provides that the right to a fair trial includes the right:g.to choose, and be represented by, an advocate, and to be informed of this right promptly;h.to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; 38.The Court of Appeal held in Patrick Oduor Ochieng v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. 39.However, in the present appeal, the appellant did not raise the issue of legal representation in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, this Court does not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated. iv. Whether there is any basis for this Court to interfere with the sentence imposed by the trial court. 40.Having carefully re-evaluated the entire evidence on record and having found that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt, this Court is satisfied that the conviction entered by the learned trial Magistrate was safe and firmly grounded on the evidence. Consequently, the appeal against conviction is devoid of merit and is hereby dismissed. 41.This Court now turns to consider the propriety and legality of the sentence imposed by the trial court. The question for determination is whether the sentence meted out was consistent with the applicable provisions of the law and whether there exists any basis upon which this Court should interfere with the same. 42.It is trite law that sentencing is the discretion of the trial court. The Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR stated thus as regards interference with sentence:It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist. (Emphasis added) 43.Before considering whether there is any basis for interfering with the sentence imposed by the trial court, it is important to restate the objectives of sentencing in criminal matters. Sentencing serves multiple purposes, including punishment, deterrence, rehabilitation, denunciation of unlawful conduct, and the protection of society from offenders. 44.Section 8(4) of the Sexual Offences Act provides that any person convicted of defiling a child aged between sixteen (16) and eighteen (18) years is liable to imprisonment for a term of not less than fifteen (15) years .In the circumstances, the sentence imposed by the trial court was lawful as it fell within the statutory framework prescribed under Section 8(4) of the Sexual Offences Act. The provision sets a mandatory minimum sentence 15 years’ imprisonment, below which a sentencing court has no discretion to descend, regardless of the mitigating factors advanced by an accused person. 45.While the Appellants’ mitigation was duly on record, the trial court was bound by the express provisions of the statute and could not lawfully impose a sentence below the prescribed minimum. The sentence of 15 years’ imprisonment was therefore proper, lawful, and incapable of interference on appeal. E. Disposition 46.In the upshot, this Court finds no merit in the Appellants’ appeal. The appeal is hereby dismissed in its entirety. The conviction entered by the trial court is upheld as safe, and the sentence imposed is affirmed as lawful. It is so ordered. 47.Right of Appeal within 14 days from today. 48.It is so ordered. DATED AND DELIVERED AT MALINDI THIS 29TH DAY OF JULY 2026C. AKAIGWAJUDGEIn the presence of: