https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7373

Mwangi v Republic (Criminal Appeal E015 of 2022) [2026] KEHC 7373 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7373 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E015 of 2022 MA Odero, J May 29, 2026 Between Benson Kariuki Mwangi Appellant and Republic Respondent Judgment 1.The Appellant Benson Kariuki Mwangi has filed this appeal challenging his conviction and sentence in the Magistrates Court. 2.The Appellant had been arraigned before the Magistrates Court in Nyeri facing a charge oF Defilement Contrary To Section 8(1) As Read With Section 8(3) Of The Sexual Offences Act 2006. The particulars of the charge were that“On the 16th day of June 2020 at [Particulars Withheld] in Kieni West Sub county within Nyeri County intentionally and unlawfully caused your genital organ namely penis to penetrate the genital organ namely vagina of E.M.M a child aged 12 years.” 3.The Appellant also faced an alternative charge of Commtting An Indecent Act With A Child Contrary To Section 11(1) Of The Sexual Fofences Act. 4.The Appellant entered a plea of ‘Not Guilty’ to both charges. His trial commenced on 25th September 2020 and the prosecution called a total of four (4) witnesses in support of their case. 5.PW1 R.M was the mother of the complainant. She told the court that she lives in Bellevue [Particulars Withheld] with her children including the complainant who was at the material time aged thirteen (13) years old and was a class 8 pupil. 6.PW1 stated that on 16th June 2020, she came home in the evening and was informed that the Appellant ‘Ben’ wanted her to do some work for him the next day. The following day PW1 was unwell and could not go out to work. Her daughter volunteered to go in her place. 7.PW1 went on to state that at the end of the day she waited for the complainant to return in vain so eventually the mother went out to search for her. She went to the house of the Appellant where she heard loud music from inside the house. Pw1 knocked on the door several times but nobody opened. 8.PW1 then went to call ‘Mary Wangare’ who was the Appellant’s girlfriend. The two went back to the house and knocked again. The said ‘Mary’ called out to the appellant and he finally responded and opened the door. That the appellant came out of the house dressing up i.e putting on his trousers. 9.The appellant’s girlfriend entered the house and checked and found the complainant hidden under a blanket. The child’s mouth had been stuffed with a red T-shirt. PW1 shouted for help and neighbours came. A neighbour who was a village elder called the police who came and arrested the appellant. The complainant was taken to hospital for medical examination. Eventually the appellant was charged in court. 10.The complainant E.M.M told the court that on 16th June 2020, she went to work in the appellant’s shamba. She worked that day and was paid Kshs. 250. The child then left and went to a friend’s house. She later returned to the Appellants house to enquire whether she would be required to work the next day. That the appellant then grabbed the child, pulled her into his house and placed her on the bed. The Appellant then increased the volume of his music, stuffed the child’s mouth with a T-shirt, removed her clothes and defiled her. 11.Later the complainant’s mother came looking for her. The mother called out but Appellant did not open the door. Later PW1 returned with the Appellants girlfriend called ‘Mary Wangare’ who called out to him. The Appellant then threw a blanket over the complainant and then opened the door. That the said ‘Mary’ entered the house and found the child under the blanket. Police were called and they arrested the appellant. The police also took the minor to hospital where she was examined. 12.PW3 PC (W) Beth Wambui told the court that on 16th June 2020 the local chief came with PW1 to report a case of defilement. PW3 recorded the report in the occurrence Book. PW3 then referred the complainant to hospital for treatment. 13.PW4 DR William Muriuki is a medical doctor who at the material time was based at Nyeri PGH. He produces the P3 form as well as the PRC form in respect of the complainant. PW4 also produces the age assessment form filled out by the dentist who examined the child. 14.At the close of the prosecution case the appellant was found to have a case to answer and was placed on his defence. The appellant gave an unsworn defence in which he denied having defiled the complainant. 15.On 9th September 2021 Hon Nelly W. Kariuki, Principal Magistrate delivered her judgement in which she convicted the appellant on the main charge of defilement. The Appellant was later sentenced to serve twenty (20) years imprisonment. 16.Being aggrieved by both his conviction and sentence the Appellant filed this un-dated Petition of Appeal which was premised upon the following grounds:-“ 1.That, the trial magistrate erred both in law and fact in not knowing that prosecution’s evidence was fully contradicting, inconsistences and un-collaborated evidence. 2.That, the trial magistrate erred in law and facts while a person who committed the said offence was not arrested and charged. Thus my right under Article 50 (2) of the constitution was violated. 3.That, the trial magistrate erred in law and facts again since the clinical evidence did not link me, the appellant in the instant case as I was not examined and the D.N.A analysis was not conducted to prove the allegation. 4.That, the trial magistrate erred in both matters of law and facts when failed to consider that the alleged incidence had occurred in the year 2019 and there was no any report made to the police. 5.That, the trial magistrate erred in both matters of law and facts when failed to observe that there was a grudge between me and my former wife and hence the instant case was just framed up case. 6.That, the trial magistrate erred in both matters of law and facts since I the appellant’s sworn evidence was rejected without considering that prosecution was unable to challenge the defence.” Analysis And Determination 17.I have carefully considered the appeal before this court, the record of the trial before the Lower Court as well as the written submissions filed by both parties. 18.This is a first appeal in which the duty of the Court is to re-examine and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of Okeno -vs- Republic [1972] EA 32 the court set out the duties of the appellate court as follows:-“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 Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding 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] EA 424.”(See also Kiilu & Another v Republic [2005] KLR 174). 19.Similarly in the case of David Njuguna Wairimu -vs- Republic [2010] eKLR the Court of Appeal stated as follows:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 20.On the question of age the complainant in her voire dire examination told the court that she was aged twelve (12) years. PW1 the complainant’s mother told the court that her daughter was aged thirteen (13) years old. PW1 told the court that she has not yet obtained a birth certificate for the minor. Does the lack of an official document to prove age negate the charge of defilement. I think not. 21.Rule 4 of the Sexual Offences Rules provides that:-“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.” 22.In the case of Edwin Nyambogo Onsongo -vs- Republic [2016] eKLR the Court stated thus“………………………the question of proof of age has finally been settled by recent decisions of this court to 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 valuable” [Own emphasis] 23.PW4 told the court that an age assessment was carried out on the complainant. The Appellant did not object to the production of this age assessment report. The report dated 22nd June 2020 Pexb 1 indicates that the child E.M.M was found to be between eleven (11) and twelve (12) years. I find that through this report the age of the complainant was proved to be between 11 – 12 years old. 24.The next element of the charge requiring proof is the fact of penetration. Section 3 of the Sexual Offences Act defines penetration as follows:-“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person. 25.The complainant in her evidence stated that the appellant pulled her into his house and defiled her. In her own words the child stated that“As I left he grabbed me and placed me on the bed. He increased the volume of the music and removed my clothes. He stuffed a T-shirt in my mouth. He removed his clothes. He removed his private part and put it in my private part. I did not want him to do that. I refused him to do that. I struggled but he put his private part into my private part by force…...............” 26.Here the complainant has given a graphic and detailed account of what happened to her. This account does not appear to have been fabricated. The complainant remained unshaken under cross-examination by the appellant. She did not change her story at all. 27.The complainant’s evidence on penetration was corroborated by the doctor PW4 who confirmed that the child was examined at Nyeri PGH. The P3 form dated 22nd June 2020 (Pexb 3) indicates that the complainant was found to have a broken hymen and whitish discharge from the vagina. These findings were confirmed in the PRC form Pexb 2. From the evidence availed in the trial court I find that element of penetration was sufficiently proved. 28.The final element required in proof in a case of defilement is the identity of the assailant. The complainant identified the Appellant as the man who defiled her. The appellant was a neighbour and was well known to the child. She referred to the appellant as ‘Ben’ which is his given name. Therefore I find that there is clear evidence of recognition. 29.In the case of Anjononi & 4 Others -vs- Republic [1980] KLR the court stated that:-“………………recognition of an assailant is more satisfactory more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 30.The complainant narrated to the court how on the material day she went to work in the appellant’s shamba in place of her mother who was unwell. PW1 the child’s mother confirmed this fact. The complainant stated that she worked in the shamba as required and states that she was paid her money and left to visit a friend. The Appellant confirmed that the child did work in his shamba weeding carrots on the day in question. The appellant further confirms that at 7:00pm he paid the complainant and she left. 31.According to the complainant she later returned to the appellant’s house to enquire if she would be required to work the next day. The appellant told her that he only needed one person the following day. This is when he pulled her into his house. 32.From the evidence it is clear that the complainant had a long and sustained interaction with the Appellant. They were the only two people inside the house. This coupled with the evidence of recognition rules out any possibility of a mistaken identity. 33.PW1 who was the child’s mother confirmed that she found her child inside the appellant’s house hidden under a blanket. PW1 told the court that the appellant’s girlfriend one ‘Mary Wangare’ is the one who entered the house lifted the blanket and discovered the child there. The said ‘Mary Wangare’ was not called as a witness. This is not surprising as being the appellant’s girlfriends this lady would not have been ready to implicate him. 34.Is the failure/omission to call this ‘Mary Wangare’ as a prosecution witness fatal to the prosecution case? In my view it is not.The evidence of the child was properly corroborated by PW1. Furthermore the appellant himself admitted that the child was found inside his house. 35.During cross-examination of the complainant by the appellant the trial court made the following observation.“The minor is very confident and firm during cross-examination.”This was the observation of the trial court who actually saw and heard the child testify. Therefore the trial court observed that the child’s demeanour was honest (positive). 36.The fact that the complainant was found inside the appellant’s house hidden under a blanket is very telling. Why would an adult man be locked up in his house with a child if not for some nefarious purpose. 37.In his defence the Appellant concedes that the complainant was found inside his house. He claims that he did not know how or when the child entered his house and says that he too was shocked that she was there. This is obviously a fabricated defence. Is the appellant trying to suggest that the child broke into his house? No break-in was noted at all. The only way the child could have gained access into the appellant’s house is if he allowed her into the house or if as the complainant says the appellant pulled her into his house. 38.Further in his defence the appellant stated that when he opened the door the child’s mother PW1 stabbed him. The appellant stated that he went to hospital and was treated for the injury. The Appellant did not produce any medical documents or receipts to show that he was injured or that he sought treatment on that day. Apparently the appellant did not report this knife attack to police as no P3 form was produced. From all accounts there was a crowd at the scene including the assistant chief. The appellant did not call any witness to corroborate his claim that PW1 knifed him. I find that the appellants defence lacked credibility and I concur with the trial courts dismissal of the same. 39.Finally I am satisfied that the prosecution proved the case of defilement beyond reasonable doubt. The appellant’s conviction was sound and I do confirm that conviction. 40.Following his conviction the appellant was allowed an opportunity to mitigate. A pre-sentence report was produced in court. Finally the court sentenced the appellant to serve twenty (20) years imprisonment. 41.Section 8(3) of the Sexual Offences Act provides that“(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 42.Therefore the sentence imposed by the trial court was lawful and I am not inclined to interfere with the same. 43.In conclusion this appeal fails in its entirety. The conviction by the trial is confirmed and sentence is upheld. DATED IN NYERI THIS 29TH DAY OF MAY 2026.……………………..MAUREEN A. ODEROJUDGE