https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8780

Mutunga v Republic (Criminal Appeal E017 of 2023) [2026] KEHC 8780 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8780 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E017 of 2023 TM Matheka, J June 12, 2026 Between Patrick Mwatha Mutunga Appellant and Republic Respondent (Appeal from the conviction and sentence in Kilungu MCCR No 178 of 2016 Mayamba SRM 6/9/2018) Judgment 1.Patrick Mwatha Mutunga was charged with 2 counts of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 14/1/2016 at [Particulars Withheld] village Mbitini Division Makueni County he intentionally and unlawfully caused his penis to penetrate the female organs namely vagina of JN and JBM both children of 8 years. 2.The accused was arrested on 28/3/2016 and arraigned before court on 29/3/2016. the record says he pleaded not guilty to main count and alternative counts ( I did not see these) . 3.At some point the police file disappeared and had to be reconstructed. That delayed the trial for a while. The matter finally took off on 14/1/2017 before Hon. L. Muiru. By 5/9/2017 – all witnesses and except the Doctor and Investigating Officer had testified and prosecution was granted last adjournment. There was a final adjournment on 1/11/2017. On 5/12/2017 – the accused was absent. A warrant of arrest was issued for him. 4.He showed up on 19/6/2018. The hearing date was fixed to 5/7/2018. He was absent – The prosecution submitted before court (Mayamba SRM) that the delay of close to 3 years was denying the complainants justice. That court 2 was on leave for 3 months. He urged the court to invoke section 200(3) of the Criminal Procedure Code to avoid further delay. 5.The trial court cited R vs Galma Abagaro Shano HCR 41/2011 where the court stated that the accused person by absenting himself from court had abrogated his Constitutional right to be present during trial – and proceeded to hear his case in his absence. Hon Mayamba SRM agreed with the prosecution invoked section 200 (3) of the Penal Code and proceeded to hear 2 witnesses. 6.On 16/8/2018 the accused was present. He told court he did not have fare to come to court. His bond was cancelled. 7.On 22/8/2018 the accused told the court that his case had pended for long prior to his absence – He requested that Pw5 and Pw6 who had testified in his absence be recalled. The court stated: Case to proceed “in line with my earlier order on section 200(3) of Criminal Procedure Code of which the accused now affirms. Pw5 and Pw6 be recalled. 8.The witnesses were recalled – only for cross-examination. This time the accused was unrepresented. Pw7 the Investigating Officer testified also. That is the background. 9.The complainants were minors aged 8 years old at the material time. They were living with their grandfather (the father to their mother). Their mother was working in Emali at that time. The accused person was then a farm hand. He had worked for them for a year as at the time of the alleged offence. 10.RMM the mother of the 2 children told the court that her father called her on 17/3/2016 and told her that the accused was defiling her children. 11.She went home – interrogated her child who told her the accused would go to their room while they slept and would defile them. She said she washed the children that day and while doing so, inserted a finger in their vaginas - and they said they were feeling pain. 12.On cross-examination she told the court that the accused was arrested between 9:00 and 10:00 pm by the chief and assistant chiefs; that he was tied up with ropes in the presence of herself, her father and the teacher. That he must have been released because the way he was tied he could not have escaped from the arrest and was later arrested in Kitui. 13.She said the children slept under one roof with her 73 years old father and the accused person slept outside in a house next to the kitchen. That the accused admitted the offence – that he told them he had last done it on 15th. 14.She marked before court treatment documents dated 18/3/2016 and P3 forms dated 21/3/2015. That after the accused escaped they alerted the OCS Kitui – she said the mother died in 2014 and her children had lived with their grandfather since. 15.The 2 minors were each taken through voire dire. 16.The trial court found that though each of them was intelligent enough to testify, each of them did not understand the difference between telling lies and truth, and each did not understand the nature of an oath so as to testify on oath. She directed that each to give unsworn testimony. 17.When JB began her testimony – she told the court she did not know the accused person prompting the prosecutor to seek to stand her down “to carry out further pre-trial”. This was objected to by counsel for the accused, and the trial court sustained the objection stating that in light of the voire dire the court had conducted the child could continue to testify. 18.She proceeded to testify that the man would come to her bedroom where she slept with her and her sister and do tabia mbaya to her. She did not know how many times he had done it; she had told her teacher and her grandfather, her mother – she said that his name was Patrick Mwatha Mutunga. That he was an employee. That he was the one who would be left to lock the door. On cross-examination she said she only knew her mother’s name as Rose – that her Grandpa was Justus Mutinda. She said their house had electricity. They would switch off the lights when they slept, that they slept early leaving their grandpa to watch the news. 19.She said that the house had a main door – which entered the sitting room – and there was a door to the kitchen, then to the bedroom. That one would hear what was happening on the other room – she denied that her mother touched her private parts. 20.She said she tried to tell grandpa every time it happened but he went to sleep. That when Patrick went to their room he would switch on the lights. That when the lights were on, he would not do anything to her. That when the lights were off she did not see who did it. 21.JM on her part identified accused as Mwatha and said he would go to their room and do tabia mbaya to them. He had only a shirt and nothing below. That he did tabia mbaya to her severally – she told her mum – that Babu knew and she told teacher as well. 22.She said he would “commit the offence and leave”. That he would not talk to her – that she just kept quiet, that she did not scream. That evening he did it JB was present but was asleep. 23.On cross-examination she said tabia mbaya was done to her and JB. That they would sleep at 800 pm leaving grandpa. She said her baby brother also slept in the same house – but he slept much earlier than everyone else. 24.That Mwatha slept outside near the kitchen – That he was given the padlock by grandpa to lock the metal door from outside – that door made a lot of noise. She said she did not know who did tabia mbaya to her because it was dark. She said she did not tell anyone before when it happened. That she only reported the last one. 25.Pw4 was her grandfather Julius Mutinda. 26.He said on 16/3/2016 at 200 pm the children told her they would not sleep there – they told him Mwatha was using his penis to defile them. He said he told them to “sleep and if he does that again, they tell me”. He informed their mother who was in Emali and she came and reported to the chief. 27.He said the door would be locked without the padlock to enable Mwatha to come in to make tea because he (Pw4) could not do so due to arthritis in his legs. He said the children told him; they also told the teacher. 28.On cross-examination he said accused was arrested while sleeping by the chief and his 2 assistants. He said the accused would close the door at night. He said he never heard him enter the house at night. He said he would not tell if the children were actually defiled. 29.Pw5 Agnes Dotty Muli testified that the complainants were her pupils. That on 16/3/2016 at 9:30 am she noticed that JB was limping and on asking she told her Mwatha had hurt her and that he would do tabia mbaya to her and her sisters at night when their grandfather was asleep. She called the sister who repeated the story. She took the children to the nursery school teacher – they also said the same thing before the headteacher. That Mwatha was arrested and he escaped. On cross-examination by accused she said the children told her Mwatha had defiled them 30.Pw5 Dr. Charles Mwendwa Mutisya testified that he examined JM on 21/3/2016. He noted lacerated posterior aspect, broken hymen, no spermatozoa. JB also had broken hymen, swollen vaginal wall – no spermatozoa seen. On cross-examination by accused he said he did not examine the accused. 31.Pw7 No. 85309 PC Ale Kitur the Investigating Officer said he took over from CPL Okaka who was transferred. He spoke about the defilement – that the Doctor confirmed the same. He spoke about the accused – how he was arrested by the chief then he escaped – that he was arrested from Kitui and charged. He produced the certificate of birth and investigation diary. The prosecution closed its case. 32.In his unsworn statement of defence the accused denied the offence. He said he was arrested in Kitui and presented in court for something he had not done and was not aware of. 33.In the Judgment delivered on 6/9/2018, the trial court found him guilty and sentenced him to life imprisonment on each count. Aggrieved, the appellant filed this appeal on the following amended grounds:-a.Violation of the Right to a Fair Trial since the proceedings were conducted in a manner that contravened the principles of fairness and impartiality, thereby undermining the accused’s right to a fair trial.b.Failure to Establish the Prosecution’s Case beyond Reasonable Doubt for the evidence presented was insufficient to meet the legal threshold required for a conviction, rendering the case unproven.c.Inadequate Evaluation of Evidence and Legal Issues by the Trial Magistrate as the Trial Magistrate failed to properly assess and analyse the facts, evidence, and applicable law, leading to a flawed determination.d.Erroneous Admission of Inadmissible Exhibits for the court improperly admitted exhibits that did not meet the legal standards for admissibility, thereby prejudicing the defence.e.Improper Reversal of the Burden of Proof as the Trial Court erroneously placed the burden of proof on the accused, contrary to established legal principles that require the prosecution to prove its case.f.Imposition of a Sentence that is Excessive and Disproportionate as the sentence handed down was unduly harsh and not commensurate with the nature and circumstances of the offense. 34.Both the appellant and the respondent filed elaborate detailed submissions which I have considered. 35.The appellant argued the grounds separately on unfair trial, he relied on Article 50(2)(e) of the Constitution arguing that being tried absentia was violation of his rights to fair trial. He cited –SUBPARA 16. In David Njuguna Gichure v. Republic [2016] eKLR; the Court of Appeal emphasized that: “Unrepresented accused persons must be accorded procedural safeguards to ensure meaningful participation. Failure to do so violates Article 50 and renders the trial unfair.”18. Also, in the case of Gabriel Njoroge v. Republic [2012] eKLR; the Court of Appeal ruled that: “Proceeding with trial in the absence of the accused, especially during key testimony, amounts to a miscarriage of justice. The trial court must ensure that the accused is present and informed of their rights, particularly when a new magistrate take over.” 36.He submitted that there was improper invocation of section 200(3) of the CPC and cited –Republic v. Samuel Mwangi Wambugu [2014] eKLR, the High Court held that: Failure to inform the accused of their rights under section 200(3) rendered the trial a nullity.”Also, in Joseph v. Republic [2016] eKLR: the court emphasized on this issue that. “The accused must be given meaningful opportunity to exercise their rights under section 200.” 37.That in totality the following rights were violated:-a.The right to be present during trial.b.The right to be informed of procedural rights.c.The right to challenge evidence meaningfully. 38.The appellant argued that the case for the prosecution was riddled with contradiction – which he pointed out – as among Pw1 and Pw4 and that the court unrightfully relied on section 124 of the Evidence Act. That considering that the minors gave unsworn testimony it was imperative that their evidence be corroborated. He urged the court to find the evidence of the minors unreliable. He cited David Ndirangu Karugu Case – High Court, Nyandarua (2025); stating that an appellant had been convicted of defilement and sentenced to 20 years. When the matter firstly appeared for appeal, this High Court differently constituted ruled that; “The prosecution’s case was riddled with inconsistencies, and the complainant’s testimony was unreliable.” 39.On whether the ingredients of the offence had been proved beyond a reasonable; – on penetration, he submitted that the mother of the minors told the court that she inserted a finger in their vaginas when she washed the children – that there was no knowing whether the injuries that were seen by the doctor on 23/1/2016 were caused by her act of inserting a finger into their genitals. He relied on- Nyeri Criminal Appeal no 270 of 2012 George Kionji v Republic where the court spoke about the medical evidence . “Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”And urged the court to find that the medical evidence did not connect him to the alleged defilement. 40.The appellant argued that the trial court shifted the burden of proof to him to prove his innocence. He relied on Woolmington vs DPP 1935 AC 462. 41.He argued that the case for prosecution was premised on alleged multiple acts of defilement which were not established .That the minors said it happened many times and that the last time was the 15th. That the charge sheet spoke of a specific date, the 14/3/2016 yet no evidence was led by the prosecution to establish that something actually happened on that 14th. 42.He urged that the identity of the perpetrator remained unclear – the minors clearly told the court that the alleged defilements happened in the dark and they did not see who did it. 43.That their grandfather told the court that one would hear the goings on in the other bedroom, and he never heard the accused enter the room at night. 44.The respondent set out issues for determination-i.Whether there was penetration.ii.Whether the Appellant is the perpetrator.iii.Whether there was notable inconsistencies in the testimonies of the witnesses.iv.Whether the ingredients of defilement have been established.v.Whether the sentence meted out to the Appellant is safe. 45.The state relied on – section 124 of the Evidence Act, arguing that a court could convict solely on the complainant’s testimony in sexual offences. If the court records reasons for believing the testimony: GOA v Republic [2018] eKLR, where the court reaffirmed that corroboration is not a legal necessity in sexual offences if the victim’s evidence is credible; Ali Mohamed Ibrahim v Republic [2017] eKLR, where the court held that the absence of certain physical exhibits did not negate proof of penetration where credible testimony and medical evidence existed. 46.They argued that there were no material contradictions in the case for the prosecution and relied on Erick Onyango Ondeng’ v Republic [2014] eKLR, where the court citing Twehangane Alfred v Uganda, stated that only grave contradictions affecting the core of the case warrant rejection of evidence. 47.The court was urged to find that the prosecution’s evidence in this matter was coherent, consistent, and reliable. 48.Relying on Lukas Muli Nzioka v R [2019] and KLR the respondent submitted that all the ingredients of defilement had been established. It was also submitted that the sentence of life imprisonment was legal, as it was the mandatory sentence provided by the law. Analysis and Determination 49.I have carefully set out the evidence, the submission by parties. I have read the judgment of the trial court. 50.As a 1st appellate court my duty is to re-evaluate the evidence and draw my own conclusions always alive to the fact that I never heard or saw the witnesses. (see Okeno v R) 51.In this case the court relied on the proviso to section 124 of the Evidence Act – in relying on the evidence of the minors and I must caution myself that I did not see the demeanor of the minors. 52.The ingredients of defilement were well set out in the submissions of the state and the trial court relied on evidence of the minors and the medical evidence to arrive at the conclusion that penetration was proved. 53.It is concerning that the trial court did not take into account the peculiar conduct of the mother of the minors of inserting her finger into their vaginas while washing them the day she came home, a day just before they were taken to hospital for examination. The record did not show why she did that but her own evidence is that the minors told her that they felt pain when she inserted her finger into their vaginas. 54.The medical evidence on record followed that peculiar incident and there is no telling, absent of spermatozoa – whether the injuries sustained by the 2 minors and found at the time of examination were not caused by their own mother. The minors told the court that the incidents happened at night – in the dark – and each stated that they could not tell who did it. 55.The mother said the minors shared a bed. Each said that the accused would come in, remove his trouser and do tabia mbaya. However, neither of them saw the accused do this tabia mbaya to the other one, Pw3 said when it happened to her the Pw2 was asleep next to her. – there are details of what happened that the prosecution left out and which are required by section 33 of the Sexual Offences ActEvidence of surrounding circumstances and impact of sexual offence Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove(a)whether a sexual offence is likely to have been committed—(i)towards or in connection with the person concerned;(ii)under coercive circumstances referred to in section 43 ; and(b)for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned 56.It is unfortunate that the prosecution did not take time to enable the minors build a clear picture of what happened. The statement that tabia mbaya was done is not proof that it was. 57.The Pw2 said that outside door was noise and we could hear it make noise when being opened and closed. She said one would hear the happenings in their grandfathers room when he coughed/spoke on phone because their rooms were close – but Pw3 said the complete opposite - their grandfather said the same – that one could hear the goings on in the children’s room and vice versa. 58.There was another child in the family but no one questioned him as to whether he had seen/heard anything. 59.The testimony of the teacher was that Pw2 is the one who told her about the incident on 16/3/2016, when she saw the complainant limping and asked what had happened. That she told her about “Mwatha” going to their room when grandfather was asleep. The minors however told the court that they could not tell who did it because it was in the dark. 60.Defilement is a very serious offence and the lack of investigations is a crying shame. The Investigating Officer simply repeated what the minors said, what the doctor found, and produced the investigation diary and the birth certificates. There is no evidence that he carried out any investigations. Did he visit the scene? – did he check out the testimony of the minors and their grandfather/ was there possibility of any other person entering the house? 61.It was the testimony of PW1 that the appellant was arrested at the home of Pw1 and escaped – from the hands of the chief and assistant chief and rearrested in Kitui. Neither of these witnesses were called to confirm that at the material time was accused was actually in the home of Pw1 – and was arrested and escaped. 62.He was not charged with the alleged escape from lawful custody – yet the trial court relied on that allegation as evidence of guilt/guilty mind. 63.The prosecution’s case was presented on faulty evidence on the invocation of section 200(3) of the CPC. It is noteworthy that this was invoked because the trial court was on leave. 64.The trial court had not left the jurisdiction or ceased to exercise jurisdiction – the trial court was on leave – and the invocation of section 200(3) in those circumstances was not proper. 65.On the issue of violation of the right to fair trial. The record will show that there was no time during the trial that the trial court complied with Article 50 (2) (g) and (h) of the Constitution and with s. 43(1) of the Legal Aid Act(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;Legal Aid Act 201643.Duties of the court(1)A court before which an unrepresented accused person is presented shall—(a)promptly inform the accused of his or her right to legal representation;(b)if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and(c)inform the Service to provide legal aid to the accused person.(1A)In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—(a)the severity of the charge and sentence;(b)the complexity of the case; and(c)the capacity of the accused to defend themselves.The appellant faced a complex charge with a severe mandatory sentence. At the beginning he had counsel . However, after absconding bond and upon his return the court did not take its time to do the necessary and to have the same reflected on record. 66.The trial court citing the provisions of section 124 of the Evidence Act, Chapter 80 Laws of Kenya it is provided that “Notwithstanding the provisions of section 19 of oaths and Statutory Declaration Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only 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.” stated that the complainants stated that they were defiled and the medical examination confirmed that indeed the hymen for both children had been broken and also, they had lacerations and swellings on their genitals was indicative of penetrative act. 67.The medical evidence was compromised by the act of the mother penetrating the children with her finger, evidence that the court ignored. 68.The court further stated that DW1 acts of absconding from this court was also indicative of guilt conscious. There was no point of running away from this court for over a year until he was traced for arrest if he was sure that case was a fabrication. 69.There was ne evidence that this was the reason as the appellant upon return told the court that he did not have fare to come to court. Disposition 70.From the foregoing it is clear that – the case for the prosecution raised serious doubts on the evidence of penetration., on the identity of the perpetrator and the circumstances surrounding the alleged commission of the offence. Those doubts can only be resolved in favour of the appellant. 71.The appeal succeeds. The conviction is quashed. The sentence is set aside . The appellant is to be set at liberty unless otherwise legally held. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET THIS 12TH JUNE 2026.MUMBUA T MATHEKAJUDGECA Chrispol.Musyoki for state.Appellant present.