https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10414

Muturi v Republic (Criminal Appeal E007 of 2024) [2026] KEHC 10414 (KLR) (13 July 2026) (Judgment) Neutral citation: [2026] KEHC 10414 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Appeal E007 of 2024 JK Sergon, J July 13, 2026 Between Anthony Muturi Appellant and Republic Respondent Judgment 1.The Appellant, Anthony Muturi, was charged before the Chief Magistrate's Court at Nakuru with the offence 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 1st July 2021 at [Particulars Withheld] Estate in Nakuru West Sub-County within Nakuru County, he intentionally and unlawfully caused his penis to penetrate the vagina of A.N., a child aged 9 years. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2.The Appellant pleaded not guilty to both charges. After a full trial, the learned trial magistrate, Hon. V.O. Adet, Principal Magistrate, convicted him on the main count and sentenced him to thirty (30) years imprisonment. The alternative charge was left in abeyance. 3.Aggrieved by the conviction and sentence, the Appellant has lodged this appeal. He has raised six grounds of appeal, which he has elaborated in his written submissions. 4.As this is a first appeal, this Court is duty-bound to re-evaluate the evidence on record afresh and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. The Court of Appeal in Okeno v Republic [1972] EA 32 at 36 stated on the duty of the Court on a first appeal;“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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, see Peters v. Sunday Post, [1958] E. A. 424." 5.I shall therefore re-evaluate the evidence and reach my own conclusion, bearing in mind that this Court has not had the benefit of hearing or seeing the witnesses, an advantage only the trial court had. 6.The prosecution called four witnesses to prove its case. 7.PW1 – A.N., the complainant, testified that she was 12 years old at the time of her second testimony. She recounted that on 1st July 2021, she came from school and was playing with her friends Martha and Ciku at a field around noon. Her friends went for lunch, and she remained alone. She was then called by the Appellant, whom she referred to as "uncle." He gave her 20 shillings and told her to buy mandazi. He then instructed her to light his stove and cook ugali.The Appellant then blocked her mouth with paper, tied her hands with a rope behind her back, and laid her on his bed. He told her to remove her clothes, but she refused. He then removed his T-shirt, trousers, and underwear. She was wearing a skirt. He placed her on the bed facing up, came on top of her, and inserted his penis into her vagina. She could not scream because of the paper in her mouth. When her friend came calling her, the Appellant went out and said she was not there. She ran out, and her friend Martha saw her and said she would tell her mother. She told her mother, who took her to the hospital. She identified the Appellant in court and confirmed that he was their neighbour, staying in House No. 10. 8.PW2 – RWW (Mother of the Complainant), testified that the complainant was her third child, born on 11th September 2012. On 1st July 2021, she had gone to register for a birth certificate. When she returned, she found the complainant and Martha waiting for her. The complainant informed her that "uncle" had called her, placed her on the bed, tied her hands, blocked her mouth, and did "tabia mbaya." PW2 confirmed that the Appellant was their neighbour and that he had health problems, specifically epilepsy. 9.PW3 – Dr. Martin Abuto, a medical officer from Nairobi Women's Hospital, testified on behalf of his colleague. He produced the P3 Form and PRC Form for the complainant. The complainant was 9 years old at the time of examination. The history was that she had been defiled. On examination of the vagina, the doctor found an old torn hymen, inflamed vaginal walls, and inflamed labia. The doctor concluded that the findings were consistent with vaginal penetration by a blunt object. In cross-examination, the doctor stated that there was evidence of forceful intercourse based on the inflamed vaginal wall, and that penetration had resulted in swelling of the vagina. 10.PW4 PC (W) Fatuma Hiribai testified that she was the investigating officer in the matter. She was allocated the case on 2nd July 2021. The victim had already been referred to hospital and the accused had been arrested. She interrogated the accused who denied the allegations. She also interrogated the victim who narrated that the accused had invited her and gave her 20 shillings to buy mandazi and when she came back, the accused directed her to light the stove and place the sufuria on the stove. That is when the accused muffled her with a cloth on her mouth, tied her hands behind her back, took her to bed, removed his trousers and shirt, and squeezed himself on top of the victim. PW4 gathered all the relevant documents including the birth certificate and charged the accused person. 11.The Appellant gave sworn evidence and called one witness. 12.DW1 – Anthony Muturi, the Appellant, testified that he had gone to look for work in Nakuru but was unsuccessful. According to him, some children came to his house who resided in the same plot. One of the children told him that she was hungry, and when the child saw a dirty plate, thought that he was denying her food. The appellant confirmed that the children around called him uncle. He was told that he had raped, was bundled, assaulted, and taken to the police. His request to be examined alongside the child was denied. The appellant denied committing the offence alleged. According to the accused, he would have disappeared had he committed the offence, but the fact that he did not run away suggests that he was innocent. 13.DW2 – Daniel Njau Gitau testified that on 1st July 2021, he was at his workplace when he received a call from caretaker Baiza Vicky who informed him that there is a neighbour who had been arrested. When he came, he found elders talking to the accused who was his brother; they told him that the accused had defiled a child. After deliberations, he suggested that they go to the hospital first. But the police came and arrested the accused person, and took the mother and PW1. He accompanied them to hospital, where the child was examined, and he was not shown the results. 14.At the time of writing this judgment, the respondent had not filed their written submissions. The Appellant filed written submissions dated 19th January 2025. He raised the following grounds;Ground 1: The Appellant argues that the medical evidence did not support recent penetration on 1st July 2021. He points to the absence of fresh genital tears, blood stains, spermatozoa, and vaginal discharge. The medical findings revealed an "old torn hymen," which he contends is indicative of prior penetration, not recent. He relies on Fappytom Mutuku Ngui v Republic [2014] KECA 570 (KLR) and Kassim Ali v Republic [2006] KECA 156 (KLR).Ground 2: The Appellant submits that his rights under Article 49(1)(f) of the Constitution were violated. He was arrested on 1st July 2021 and arraigned on 5th July 2021, a delay of four days. He relies on Albanus Mwasia Mutua v Republic [2004] eKLR and Morris Cachia Njuguna & 3 Others v Republic [2006] eKLR.Ground 3: The Appellant argues that the prosecution failed to call essential witnesses, including Martha, Ciru, Esther, and Baba Vicky. He relies on Bukenya & Others v Uganda [1972] EA 549.Ground 4: The Appellant contends that the complainant's testimony was inconsistent. She claimed her hands were tied behind her back, yet she also stated that the Appellant removed her clothes and repositioned her. He relies on Ndugu Kimanyi v Republic [1979] eKLR.Ground 5: The Appellant submits that the trial court failed to inquire into his mental fitness, despite evidence that he was epileptic. He relies on Section 162 of the Criminal Procedure Code and the cases of Peter Kariuki v Republic [1985] eKLR and James Kang'ethe Njoroge v Republic [2019] eKLR. 15.I have carefully re-evaluated the evidence on record and considered the appellant's submissions. 16.The Appellant argues that the medical evidence was insufficient because it revealed an old torn hymen, not fresh injuries. The law on medical evidence in sexual offences is well settled. In Kassim Ali v Republic [2006] KECA 156 (KLR), the Court of Appeal held that the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. 16.In this case, the medical evidence supported the complainant's account. The doctor confirmed that the vaginal walls and labia were inflamed, which is consistent with forceful penetration. The absence of fresh tears does not negate penetration. The hymen can be torn days, weeks, or even months before medical examination, as the doctor explained. 17.The Court of Appeal in Fappyton Mutuku Ngui v Republic [2014] KECA 570 (KLR), which the Appellant relies on, does not assist him. In that case, the Court held that the evidence of the minor witnesses squarely placed the appellant as the one who defiled the complainant and that it could not be said that there was no evidence that would link him to the crime. 18.In the present case, the medical evidence corroborates the complainant's testimony. I find that the prosecution proved penetration through both the complainant's testimony and the medical evidence. This ground fails. 19.The Appellant was arrested on 1st July 2021 and arraigned on 5th July 2021, a delay of four days. Article 49(1)(f) of the Constitution provides that an arrested person has the right to be brought to court as soon as reasonably possible, but not later than twenty-four hours after being arrested. The delay in this case is regrettable. However, the Court of Appeal has held that such delays, unless prejudicial to the accused, do not automatically render a trial a nullity. In Bernard Kibatha Kaboro v Republic [2011] eKLR, the court stated that the remedy for violation of constitutional rights is not automatic acquittal; the court must examine whether the accused suffered prejudice as a result of the violation. 20.The Appellant has not demonstrated any prejudice arising from the delay. He was able to participate in the trial, call witnesses, and raise a defence. This ground fails. 29.The Appellant argues that the prosecution failed to call Martha, Ciru, Esther, and Baba Vicky. The law on this issue is clear. In Bukenya & Others v Uganda [1972] EA 549, the court held that the prosecution is not obliged to call all witnesses but must call those necessary to establish the truth. 30.In this case, the complainant's testimony was sufficient to prove the offence. The other witnesses were not essential. As the Court of Appeal held in Keter v Republic [2007] eKLR, the prosecution is not bound to call a plurality of witnesses to establish a fact. It may rely on the evidence of a single witness if that witness is credible. 31.The Court of Appeal in Beumazi Ndoro Chaila v Republic [2016] eKLR also addressed this issue, stating that failure to call witnesses does not necessarily attract an adverse inference where the evidence adduced is sufficient to prove the case. The Court stated that this proposition was espoused in the context where the evidence was barely adequate. This proposition must also be seen in light of Section 143 of the Evidence Act which provides that, no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. In this case, there was no paucity of evidence. The witnesses mentioned by the Appellant were either children or did not have direct knowledge of the offence. Their evidence would have been peripheral. This ground fails. 32.The Appellant argues that the complainant's testimony was inconsistent because she claimed her hands were tied yet the Appellant removed her clothes. I do not find this to be a material contradiction. The complainant stated that she refused to remove her clothes, and the Appellant removed them himself. This is consistent with the account of a child who was overpowered. The "tied hands" claim was that the rope was tied behind her back, which does not preclude the Appellant from removing her clothes. 33.In any event, the trial court found the complainant to be truthful. Minor inconsistencies in the evidence of a child witness are not fatal to the prosecution case. Unless they go to the root of the prosecution case, are not sufficient to discredit the evidence of a witness. The contradictions alleged by the Appellant do not materially affect the prosecution case. This ground fails. 34.The Appellant submits that the trial court failed to inquire into his mental fitness. Section 162(1) of the Criminal Procedure Code provides that when in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness. PW2, the complainant's mother, stated in passing that the Appellant had health problems and was epileptic. However, no medical evidence was produced to confirm this. The Appellant did not present a psychiatric report, request a mental assessment, or demonstrate that he was unable to follow the proceedings. 35.The record shows that the Appellant actively participated in the trial. He cross-examined witnesses, gave sworn evidence, called a witness, and made submissions. This indicates that he was mentally capable of understanding the proceedings and making his defence. In this case, there was no medical evidence or clear indication of mental incapacity. I find that the trial court did not err in failing to order a mental assessment, as there was no reasonable basis to believe the Appellant was unfit to plead or incapable of making his defence. This ground fails. 36.In the upshot, this appeal has no merit and is hereby dismissed. The conviction and sentence are upheld.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAKURU THIS 13TH DAY OF JULY, 2026.J. K. SERGONJUDGEIn the presence of:Jamleck C/AAppellant in person