https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7844

Mwangi v Republic (Criminal Appeal E089 of 2025) [2026] KEHC 7844 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7844 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E089 of 2025 JM Chigiti, J June 3, 2026 Between Benard Irungu Mwangi Appellant and Republic Respondent (Being an Appeal from the conviction and sentence in Murunga Chief Magistrates’ Court Criminal Case (SO) 006 of 2025) Judgment 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. The particulars of the offence were that on diverse dates between 10th February 2025 and 12th February 2025 at [Particulars Withheld] within Murang’a County, he intentionally and unlawfully caused his penis to penetrate the vagina of MNM, a child aged 17 years. 2.In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that on the same dates, at the same place he unlawfully touched the vagina of the same child aged 17 years. 3.The Appellant pleaded not guilty and the matter proceeded to full hearing. 4.During the hearing, PW1 was MWM testified that she has 6 children and MNM was her first born child aged 17 years old. She stated that she was born on 10.10.2007 and produced her birth certificate as P-Exhibit. 5.It was further her case that the victim ran away on 10/02/2025 as she prepared to go to school and it was only in the evening she learnt she had not gone to school at [Particulars Withheld] Secondary School. 6.It was her brother - BK who informed them that she was not in school. On Wednesday, she went to school and talked to the teacher who had been told by her friends that she was at her boyfriend's home. 7.She started asking around the home of BI and found it at Kiambare and talked to the boy’s mother who told her she was not aware. She talked to BI who denied knowing of her whereabouts and denied that she had escaped from home. 8.She told him he was going to the police but he said where she was, she was safe and he would bring her on Sunday but he insisted that he needed to take her home the same day. 9.She stated that he told her not to report to the police as he was going to bring her on Sunday but to know she was safe. She then reported at Gikandu Police Station and the accused said he was in Kangema and insisted that she was safe and will bring her on Sunday. 10.She stated that it was then that she begged him and he told her where she was. She went to Kangema Police Station and reported the case. The police did their investigations and they found accused at the agrovet where he was selling and he was arrested and he led the police to a place where he had rented a house where they found her daughter. 11.She urged that the victim told them that she never engaged in sex with the boy. They took her to Murunga Hospital where she was examined and tests were done and nothing was discovered but she was given PEP. 12.During Cross examination she stated that the complainant was her daughter and she reported her missing at Gikandu. Further, that she was present when he was arrested at Kangema and he was the one who explained to the police where her daughter was. 13.She stated that he was at work when he was arrested and not with the complainant. She stated that she asked her if anything happened between them and she said nothing happened. 14.Further, that she never reported that she had been defiled and accompanied her to the hospital. She was present when she was being asked questions by the police and she never mentioned anywhere she had been defiled. 8.PW2 was PC Naomi Kimu attached to Gikandu Police Post under Murunga Police Station. She stated that on 12.2.2025 she received a report of a girl who had escaped from home from her parents. The mother came to know of the boyfriend’s home and went there and talked to his mother who said the accused was not at home but at Kangema where he was working. She was given officers who went to the agrovet the accused was working and upon questioning him, he admitted he had MNM in his house where he took them and they found the girl there. 9.She stated that she arrested him and that the complainant denied anything happened and stated that they lived like brother and sister for the 3 days they lived together. She was then taken to hospital and the doctor said she had a severe infection. The doctor concluded that she had been defiled. 10.During cross examination, she stated that she never visited the home and was not involved in his arrest. That the girl said that the time she stayed with the accused, she did not have sexual intercourse with him. The mother never told her of the same. She stated that she was involved in taking the girl to the hospital and was in the same hospital room with the mother and the girl but the girl was not asked if she had been defiled. 15.The court conducted a voire dire examination of MNM after which the court found that she understood the meaning of an oath. She stated that she was 17 years old as she was born on 10/10/2007 stating her school and the fact that she knew the accused as her boyfriend. 16.She stated that on 09/02/2025 she went to Kangema to visit Bernard and went home at 5pm. On arrival at home she was asked where she was and said she had gone to church but her mother became doubtful and told her to go sleep. 17.The next day she woke up in the morning and prepared to go to school but she instead went back to Kangema at Bernard’s home where she stayed for 2 days until 12.2.2025 when they were arrested by the police. 12.She stated that she was in Bernard’s home when police came for her. She stated that she stayed with the accused and his friend Paul. She testified that she used to sleep on the bed and the 2 would sleep on the seat. By then both Paul and Bernard were at work. She stated that the accused was her boyfriend but they never used to do anything with him. She denied having slept with anyone. 18.During cross examination, she stated that no one called her to go to Kangema and that she went back on her own stayed for 2 days. Paul was living with Bernard and was also there. She denied sleeping with anyone and denied having sexual intercourse with Bernard. 19.When the doctor asked if anything happened between them she said nothing happened. After examination the doctor told her that she had sexual intercourse yet she knew she did not sleep with anyone. 14.PW4 was Lawrence Njoroge, a clinical officer working at Murunga Level 5 Hospital produced the PRC and P3 form for MNM. He stated that he examined the girl and the hymen was broken and either she had habitual sexual intercourse or past penetration. He pointed out that she might have been having multiple sexual intercourse or broke her vaginal penetration in the past as the hymen was not freshly broken. 20.He stated that he noted the clothing she had from the boyfriend were not stained and noted that probably the current injuries might have been 3 days and probable type of weapon was penetrative. 21.They gave her PEP and trauma counselling and classified the degree of injuries as harm. She had normal external genitalia though the hymen was broken and missing. She had a foul-smelling whitish discharge for she had sexual intercourse without taking a bath. 16.During Cross examination he stated that the outer genitalia was normal hence it was not disturbed. That it could have been habitual or past penetration. That she had a foul smell which can be contributed to many factors and not just a sexual activity. He stated that the vagina and genitalia were normal and there was no use of force if anything happened. 17.The court found that the accused had a case to answer and he was placed on his defence. 22.The appellant was DW1 stated that he knew the complainant as they met when they had gone for church rally at Kiawambirwa local church in December 2024. 23.By that time he did not know if she was a student for it was during holiday. The next time they met he was in the field and they used to meet every Wednesday and Saturday during football practice. 19.He stated that she came to their home on 25.12.2024 for a visit and his mother was present, along with his siblings and father. She did not spend the night and left at 5pm. That they met again in January and never met again from then. 24.He stated that when he was at home in Gikandu he received a call and told to go for work. That he moved to Kangema on 13.01.2025 to work at an Agrovet and since he had no money for rent, he informed his friend - Paul who was working with him in the same Agrovet. 25.He described Paul’s house and stated that the complainant called him on 09/02/2025 to find out what was going on with him. He told her that since the final game, he was unwell and before they could finish talking, her phone went off. 26.The next day at around 7am he prepared to go to church and when leaving the church at 9am, she called him and told him that her phone had depleted its charge. 27.She came to visit him and at 5pm they escorted her to board a vehicle and go back home. The next day she came back and stayed over and upon asking why she was not going back home she said she had an argument with her father on Sunday 9th when she got home at 7pm and on being asked why she arrived late but she said she had passed by her friend's place hence her reason for arriving home late. 21.On 12.2.2025 as he was going to work MNM gave him her mother’s number and after work he received a call from his mother telling him that MNM’s mother wanted to speak to him. They spoke and he told her she had escaped to his house. He denied having sexual intercourse with the complainant. 22.DW2 was Paul Gachengo Macharia testified that he lived with the accused and they worked together. That they used to have visitors and he recalled the complainant who visited on 9th which was a Sunday at 12.30pm. He stated that he never left the house and they escorted her at 5.30pm to the stage and she left. 23.The next day after coming from work, she came at 7.30am and they left her in the house as they went to work and he never returned home. He stated that Bernard never slept on the bed with her. The next day they woke up and left her in the house as they went to work. He stated that the accused told him that he had never had sex with anyone. 24.DW3 was Hellen Achieng Mwangi the accused person’s mother. She stated that he met MNM as a friend of the accused on 25.12.2024 and she asked if she was a student but she said she had cleared school. 25.Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial court convicted the Appellant of the main charge and sentenced him to 15 years’ imprisonment. 26.Being aggrieved with the conviction and sentence, the Appellant instituted the present appeal on the grounds that the prosecution failed to prove its case to the required standard and, that the sentence was harsh and excessive. Appellants’ submissions; 27.Counsel urged that it is trite law that he who alleges must prove and that the burden of proof in criminal cases is that of beyond reasonable doubt. Reliance was placed on Republic v Safari Katana Lugo [2021] eKLR. Counsel submitted that the Prosecution failed to prove beyond reasonable doubt that the accused was guilty of the offence of defilement as per Section 8(1) of the Sexual Offences Act to warrant the conviction therein. 28.Counsel listed the ingredients of the offence and urged that the age of the Complainant is not disputed. He urged that Penetration is defined under Section 2 of the Sexual Offences Act as follows;“The partial or complete insertion of the genital organ of a person into the genital organs of another person.” 29.He submitted that the Complainant categorically testified under oath that she did not have any sexual intercourse with the Appellant and the Complainant’s sworn testimony was unequivocal and was never challenged or contradicted. 30.He submitted that the trial court erred by giving weight to the Complainant’s sworn testimony - the only direct evidence on the question of penetration. PW1 further testified that the Complainant told her that she did not have any sexual intercourse with the Appellant and the police officer further confirmed that the Complainant had informed her that she did not have sex with the Appellant. 31.Counsel urged that this evidence completely negated the element of penetration. He cited Sawe v Republic [2003] eKLR and urged that in the instant case, the evidence did not even rise to suspicion—let alone proof. Further, he submitted that the doctor, PW4, testified that the Complainant’s genitalia was normal and that her hymen was broken, though not freshly broken. The Post Rape Care Form further suggests past or habitual penetrations which counsel urged that the same connotes repeated or regular vaginal penetration over time as opposed to a recent or singular incident. 32.Counsel urged that the medical findings suggest a history of sexual activity not attributable to the Appellant. He submitted that there is no indication that any such penetration occurred proximate to the date of the alleged offence. Counsel submitted that this weakens the prosecution’s case, which must be proven beyond reasonable doubt. 33.Counsel urged that in P.K.W Vs. Republic (2012) eKLR, the Court of Appeal emphasized that the mere absence or breakage of the hymen is not conclusive evidence of defilement, particularly where it is not shown that the injury is recent or attributable to the accused person. 34.He submitted that no forensic evidence directly linking the Appellant to the alleged act, as no sperm or DNA evidence was recovered during the medical assessment to confirm any sexual contact between the Appellant and the Complainant. Given these medical inconsistencies and the lack of conclusive proof, it is evident that the prosecution’s case is based on assumptions rather than factual evidence according to the Applicant. 35.Counsel urged that the trial Court erred in law and fact by admitting and relying on the medical evidence of PW4 which went beyond his professional findings and included hearsay statements, allegedly narrated to him by the Complainant. 36.He submitted that the said testimony was not based on the doctor’s direct observation but rather on information relayed to him, contrary to the provisions of Section 63 of the Evidence Act thereby rendering the evidence inadmissible and occasioning a miscarriage of justice to the Appellant. 37.Counsel urged that the trial Court relied on the testimony of PW4 to find that there was penetration, wherein the Doctor asserted that the history given to him by undisclosed person was that the Complainant had escaped home for 3 days and stayed with a man with whom the Complainant had sexual intercourse. Counsel urged that the Trial Court erred in law and fact in relying on the doctor’s claim that the Complainant told him she had sex with the Appellant. This statement was not made under oath, not repeated in court, and directly contradicted by PW3. Counsel maintained that such evidence was hearsay and inadmissible. Reliance was placed on Republic v Felix Munyao Kioko & 3 others [2017] KEHC 3041 (KLR). 35.Counsel urged that the Complainant was unequivocal in her testimony that she did not engage in sexual intercourse with the Appellant. This account was consistent with and supported by the testimonies of the Appellant and DW2. Counsel urged that there was no lawful or factual basis upon which the Appellant could properly be found to have perpetrated the offence of defilement, assuming any such offence occurred at all. 36.Counsel cited Section 124 of the Evidence Act and urged that that there exists no lawful basis for doubting the Complainant’s sworn evidence denying any sexual interaction with the Appellant. It is counsels submission that her account was further corroborated by the testimonies of the Appellant, PW1, and DW2. Counsel urged that it is noteworthy that the prosecution neither applied to treat the Complainant as a hostile witness nor suggested that her testimony was unreliable. Her evidence therefore remains admissible, credible, and binding upon the prosecution. 37.Counsel urged that the trial court, by disregarding the Complainant’s clear exculpatory evidence and instead relying on inconclusive and inadmissible evidence, improperly shifted the burden of proof onto the Appellant to establish his innocence. This approach contravened the settled principle that the burden of proof always rests upon the prosecution and never shifts. Further, he submitted that the learned Trial Magistrate erred in law in relying on circumstantial evidence of the Complainant’s stay with the Appellant as proof of penetration and identification of the Appellant as the perpetrator therein and contrary to the law which requires clear, direct, and credible evidence of the said ingredients of defilement. 38.Counsel urged that the conviction was unsafe and that the trial magistrate further erred in imposing the mandatory minimum sentence of fifteen (15) years’ imprisonment without giving due regard to the principles of proportionality in sentencing, the near-age proximity between the Appellant and the Complainant, and the peculiar circumstances of the case. 39.He prayed that the Appeal be allowed. Respondents’ Submissions; 40.Counsel urged that the prosecution proved the case against the appellant beyond reasonable doubt. He cited Section 8(1) of the Sexual Offences Act, No. 3 of 2006 and urged that the offence of defilement is rooted on three main ingredients being the age of the victim, proof of penetration and the proper identification of the perpetrator. 41.On proof of age, the same is not disputed. As Per the birth certificate, the victim was 17 years. On the proof of penetration, Counsel cited Section 2(1) of the Sexual Offences Act, ​2006 which provides the following definition:“Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 42.He urged that the complainant (PW3) narrated how she went to the appellant’s house in Kangema on various occasions. She ran away from home and stayed therein for several days. She referred to him as her boyfriend. 43.PW1, the victim’s mother also details how the victim ran away from home and the appellant himself called her to tell that he was with the daughter. Crucially, the evidence of PW4, the clinical officer was that on presentation, the history was that she had had sex with someone well known to her as her boyfriend. On examination, she was noted to have had habitual or past penetration. Counsel urged that the testimony of PW3 and PW2, coupled with the medical evidence proves the element of penetration. 44.On identification of the perpetrator, the complainant stated that the she knew the appellant well and that he was her boyfriend. The prosecution therefore proved its case beyond reasonable doubt. Counsel submitted that the appeal lacks merit and urged the court to dismiss the appeal and uphold both the conviction and sentence. Analysis and determination; 45.The issue for determination is whether or not the Appeal has merit. The court has looked at the birth certificate of the victim in order to ascertain the age of the victim and the court is satisfied that at the time of the offence she was 17 years old. This places her under the provision of Section 8 of the Sexual offences Act. 46.The next issue that this court has to determine was whether the appellant was positively identified as the person who stayed with the victim and defiled her in his house. He admitted that she was staying with him in his house with a friend by the name Paul. The victim confirmed that he was her boyfriend. The victim's mother also identified him. 47.The identification of the appellant cannot form the basis of a conviction of the offence of defilement on its own. 48.The court has to be satisfied that there was penetration. In seeking to answer this, the court has looked at the evidence of the doctor, PW4, who testified that the complainant’s genitalia was normal and that her hymen was broken, though not freshly broken. The Post Rape Care Form further suggests past or habitual penetrations. 49.This repeated or regular vaginal penetration was over time as opposed to a recent or singular incident. The victim denied having sexual intercourse with the appellant. She testified that she used to sleep on the bed while the appellant and his friend Paul slept on the floor. 50.The court is of the view that the prosecution did not create a nexus between the appellant and the intercourse that led to the breaking of the hymen which was not recently broken hymen per the doctor. The broken hymen on its own is not enough to nail the appellant and connect him to the breakage of the hymen. 51.. Being habitually sexually active the penetration would have happened through a different sexual intercourse with other persons other than the appellant. 52.. Paul testified that there was no sexual intercourse that took place between the victim and the appellant. 53.. The court concludes that the prosecution did not prove beyond reasonable doubt that the appellant committed the offence as set out in the charge sheet. Determination; 54.. The appeal has merit.Order;i.The appeal succeeds and the same is allowed. DATED, SIGNED AND DELIVERED AT VIRTUALLY ELDORET THIS 3RD DAY OF JUNE 2026.……………………………………..J. CHIGITI (SC)JUDGE