https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9126

Mwenda v Republic (Criminal Appeal E025 of 2024) [2026] KEHC 9126 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9126 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E025 of 2024 JK Biomdo, J June 25, 2026 Between Moses Maono Mwenda Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. Irene Thamara (RM) in Malindi CMC (SO) Case No. E012 of 2022) Judgment 1.The appellant herein, Moses Maono Mwenda alias Magana was convicted on 10 November 2022 by Chief Magistrate’s Court, Malindi for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on 20 February 2022 at [Particulars Withheld] within Malindi Subcounty in Kilifi county intentionally and unlawfully caused his penis to penetrate the anus of A.P.K a boy aged 10 years old. 2.He also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on 20 February 2022 at [Particulars Withheld] within Malindi Subcounty in Kilifi county intentionally and unlawfully committed an indecent act by touching anus of A.P.K a boy aged 10 years old using his penis. 3.On 30 November 2022, the appellant was sentenced to 20 years imprisonment on the main charge. Aggrieved, he filed the present appeal challenging both conviction and sentence. Background 4.The prosecution called four (4) witnesses in support of its case. PW1, the victim, A.P K testified that he was leaving school when he met the appellant who asked him to take coconut to his home. He stated that he knew the appellant since they used to be neighbor’s before the appellant relocated to a different place nearby in 2019. Hence on Saturday, he took 30 coconuts to the appellant’s home but the appellant did not pay him and asked him to collect the money the next day on Sunday. As instructed, PW1 went to collect the money from the appellant’s house when the appellant pulled him inside the house, closed the door, removed his clothes and inserted his penis on his anus, he felt pain and made noise. The noise attracted neighbour’s who gathered and started beating the appellant. In cross examination, PW1 reiterated that he knew the appellant since they previously lived in the same neighborhood and that, he made noise because he felt pain on his anus which did not tear. 5.PW2 BC testified that he was PW1’s grandfather and that he was informed that the victim was defiled on 20 February 2022 and he was required at Malindi police station. At the police station he found PW1 and was informed that he was called since PW1’s parents were not around. He further stated that he identified the appellant whom he knew as Moses Maono and took PW1 to Malindi subcounty hospital for treatment. 6.PW3, Ibrahim Abdullahi, a clinical officer at Malindi subcounty hospital, testified that PW1 was presented to the hospital on 20 February 202 with a report that he had been sodomised by a person known to him. Examination conducted established that PW1 had pain at the radius of the anus and there were visible anal injuries. He produced P3 form, treatment notes and lab test results as Exhibits 1, 2 and 3 respectively. 7.PW4, Cpl Mariam Hussein the investigating officer testified that she commenced investigations on 21 February 2022 where she established that the case had been reported on 20 February 2022 and the appellant was in custody. She rehashed was PW1, PW2 and PW3 testified and confirmed that the appellant was taken to the police station on 20 February 2022 by members of the public. 8.The appellant, in his defence elected to give unsworn testimony where he stated that on 20 February 2022, PW1 had go to collect his money which he owed him from previous years when he used to own a shop and the victim would deliver coconut to him. That he paid the victim Ksh.100 as part payment and told him he did not have the rest of the money. As they were walking headed to the shop to buy credit, a third party he did not know came and caused a scene. A good Samaritan called the police who arrested him. He said he was beaten and claimed to suffer from erectile dysfunction. 9.At the conclusion of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, convicted him and sentencing him to 20 years imprisonment. Aggrieved, the appellant filed the present appeal where he raised the following grounds:i.The trial court erred in both law and fact by failing to consider the contradiction, inconsistencies and uncorroborated evidence presented by the prosecution.ii.The trial court erred in both fact and law by failing to find that the prosecution did not prove its case beyond reasonable doubt as required by law.iii.The trial court erred in both law and fact by shifting the burden of proof to the appellant.iv.The trial court erred in both law and fact by failing to consider the appellant’s defence. 10.At the hearing of the appeal, the appellant relied on his written submissions while the Respondent relied on the record. The appellant submitted that there were various contradictions, inconsistencies and uncorroborated evidence in the prosecution’s case that the trial court failed to consider. He argued that the three elements of age, penetration and positive identification could not be ascertained due to apparent contradictions by PW1, PW2 and PW4. He cited the cases of Kazungu Mramba Mweni vs R Cr App No. 220 of 2007, Ndungu Kimani vs R (1979) eKLR and Denkeriram Kishan Pandya Vs R Cr. App No 106 of 1950 to support his case. 11.As regards the third ground of appeal, he submitted that it was wrong for the trial court to shift the burden of proof to him and cited the case of Woolmington vs DPP (1935) AC 1 to support his assertion. He urged the court to allow the appeal, set aside the conviction and sentence. Analysis and determination 12.This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of Oiruri Mose Vs R (2013) eKLR. 13.The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174, stated thus;“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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.” 14.With that in mind, the court will proceed to determine the appeal. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. The said Act provides:“8 (1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 15.In the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013 the court stated; “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” Similarly, in George Opondo Olunga vs Republic (2016) eKLR, the court of appeal held that the offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and proper identification of the perpetrator. 16.Flowing from the above, the specific ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. 17.Drawing from the above, the issues for determination are as follows: -i.Whether there was proof of penetration.ii.Whether there was proof of age of the victim.iii.Whether there was positive identification of the perpetrator. Whether there was proof of penetration. 18.Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. 19.“genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the anus of the victim, A.P.K. 20.PW1’s evidence was that on 20 February 2022, he went to collect money from the appellant for the coconut’s he had delivered the previous day. The appellant pulled him to the house, closed the door, removed all his clothes, which he described as a short and shirt, and defiled him. He stated that after removing his clothes, he started “kunifanyia tabia mbaya. Moses alitoa kitu yake ya kukojoa akaniwekea hapo nyuma kwenye mimi huwa nakunyia.” He went on to state that he got hurt and made noise which attracted neighbours. His evidence was corroborated by medical evidence in the form of treatment notes, P3 form and lab test results which clearly shows that he had pain at the radius of the anus and there were visible anal injuries, meaning there was penetration, either partial or complete. 21.PW2 and PW3 reiterated that the appellant was beaten up by members of the public who took him to the Malindi police station where he was booked for defilement. The appellant also confirmed that indeed he was with PW1 who had gone to collect a debt on 20 February 2022. The court examined the P3 Form dated 21 February 2022 and did not find any inconsistencies as alleged. The doctor’s finding that PW1 was sick looking, anxious and had rashes on the gluteal region and tenderness on the anal orifice gives credence to PW1’s testimony. Even though he denied committing the offence, the prosecution witnesses were consistent in their testimony and there was overwhelming evidence in support of this element. Whether there was proof of age of the victim 22.The age of the victim is a critical ingredient and must be proved for the offence of defilement under Section 8 (1) of the Act to crystalize. See Kamau V Republic (Criminal Appeal E003 of 2024 [2025] KEHC 42 (KLR). 23.Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi V Republic Criminal Appeal No. 21 Of 2015 [2017]. 24.In this case, the court finds that even though charge sheet and P3 form indicated that PW1 was 10 years, PW 1 testified that he was 13 years even though he did not his birthday whereas PW2, testified that he was 11 years old. Additionally, treatment notes and lab tests indicated that he was 13 years. The trial court held regarding this issue, “in spite of the fact that there were inconsistencies in the age of the victim, it is not in dispute that the victim was a minor. This court had the advantage of seeing PW1 and hearing him. By observation, it is obvious that he was a minor. Therefore, it is my finding that the evidence by the prosecution shows that he was a minor.” During sentencing, the trial court held as regards the age, “I have also taken into account the age of the victim as per his testimony that he is 13 years old.” 25.The court has analyzed the evidence on record and finds that PW1 gave evidence that he was 13 years which was corroborated by the medical evidence stated above. The trial court further made a finding based on observation that the complainant was a minor. Taking into account the circumstances of the case, the court finds that the age of the victim was properly proved to be 13 years. Whether there was proof of positive identification of the perpetrator 26.Evidence on record is that PW1, the victim positively identified the appellant as responsible for the offence and even refereed him by his name Moses during his testimony. He had interacted with the appellant the previous day and was well known to him, a fact that was admitted by the appellant in his defence confirmed that he knew the victim, who used to supply coconut and had gone to collect his debt of Ksh. 100. Additionally, the evidence shows that the incident occurred during day time hence PW1 positively identified the appellant. The court finds that this element was proved beyond reasonable doubt. 27.The court did not find any evidence to support the appellant ‘s allegations that the trial court did not consider his defence and had shifted the burden of proof. Instead, there is overwhelming evidence in support of the charge that lives no doubt as to the guilty of the appellant. 28.The appellant was sentenced to 20 years imprisonment which is the minimum sentence for the offence under section 8 (3) of the Sexual offences Act. 29.Sentencing is an exercise of discretion by the trial court. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” The sentence by the trial court was lawful and this court finds no reason to interfere with it. 30.The court reiterates that the mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR) and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR. The court finds the sentence awarded proper and lawful. 31.The upshot is that the appeal against conviction and sentence lacks merit and is dismissed in its entity. For avoidance of doubt, the conviction and sentence by the trial court is upheld. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE 2026JOSEPH KIPKOECH BIOMDOJUDGE