https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8727

Mwikali v Republic (Criminal Appeal E043 of 2023) [2026] KEHC 8727 (KLR) (19 May 2026) (Judgment) Neutral citation: [2026] KEHC 8727 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E043 of 2023 TM Matheka, J May 19, 2026 Between Muthoka Masila Mwikali Appellant and Republic Respondent Judgment 1.Muthoka Masila was charged with defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006.The particulars were that on 11/4/2021 at [Particulars Withheld] village Nguumo Location, Makindu Sub-County, Makueni County he intentionally and unlawfully caused his penis to penetrate the vagina of EMG a child aged 17 years.In the alternative he was charged with committing an indecent Act with a child contrary to section 11(1) of the same Act, on the same date, time and place – that he intentionally and unlawfully touched the vagina of EMG, a child aged 17 years with his penis. 2.The appellant took plea on 26/4/2021. He pleaded not guilty. 3.The matter was heard to full trial where the prosecution called 5 witnesses, upon which the appellant was put to the defence. He testified and did not call any witness. 4.By a Judgment dated 6/4/2023 the trial Magistrate found the appellant guilty of the main count and convicted him accordingly. 5.On 20/4/2023 the appellant was sentenced to 15 years imprisonment. 6.Aggrieved, by the conviction and sentence the appellant filed this appeal on the grounds that:- the case for the prosecution was marred by monumental inconsistencies that would have attracted an acquittal on his part, that the trial court did not conduct a holistic scrutiny of all the evidence on record ; that the trail court placed undue reliance on s. 124 of the Evidence Act 7.The appellant filed written submissions. 8.The appellant argues that the trial court “oversaw a trial which was conducted against my Constitutional Rights of a fair trial”. He urged the court to find that the trial was a a nullity, quash the conviction, set aside the sentence and set him at liberty. 9.He argues that the prosecution did not establish the ingredients of defilement. That the doctor’s testimony was inconclusive as he said he would not confirm whether or not the complainant was defiled; That neither the age nor penetration were proved as required by law – and that the prosecution did not discharge its burden to prove the case beyond a reasonable doubt. He relies on cases whose citations he gives as follows; Stephen Nguli Mulili v R [2014] eKLR. DPP VS Woolmington (1935)… Festus Mukati Murwa vs R [2013] eKLR Miller vs Ministry of Prisons (1947) 2 ALL ER 372. Elizabeth Wathigeni v r (No citation) 10.He also argues that the complainant gave conflicting evidence, which could not be relied upon because the Investigating Officer did investigate the case. That there was reasonable doubt upon which the trial court could have acquitted him. 11.That the sentence was harsh and unreasonable and that the court did not consider factors that would lead it to exercise discretion. He cited Yawa Nyale v Rep [2018] eKLR. 12.Finally, he relied on Bukenya vs Uganda (1972) EA 548 stating that the case was cited in Charles Kibara Muraiya vs R CR Appeal No. 33/2001 NYERI for the preposition that “the more serious the charge, the heavier the burden of proof for the prosecution.” I did not see any submission from the respondent. 13.Having considered the entire record, the grounds of appeal and the submissions by the appellant the questions that arise for answers are:i.whether the prosecution established the ingredients of defilementii.whether the complainant gave confliction evidenceiii.whether the trail court over relied on s. 124 of the Evidence Activ.whether the appellant’s defence was considered. 14.It is now settled that the first appellate court bears the duty of re evaluating the evidence placed before the trial court and to draw its own conclusions bearing in mind that it never did see nor heard the witnesses testify. See Okeno v R. 15.In sexual offences it is even this caution is heightened because of the proviso to s. 124 of the Evidence Act which exempts evidence of corroboration by stating:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the 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. 16.The ingredients of defilement are set out by law. Section 8 of the Sexual offences Act states at 8(1) and 8(4) respectively(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 17.Penetration is defined at s. 2 of the Act“Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 18.The complainant testified that on 11/4/2021 she was walking with two friends to Mbui Nau Market when the appellant who was riding a m/bike with a passenger got to where they were and offered them a lift. The passenger alighted. She got on board. Instead of going to Mbui Nzau he rode off to a direction she did not know. He took her to his house. Grabbed her hand, dragged her inside. Locked the door from inside. She sat on a stool in the sitting room. He removed some of clothes remaining in a pair of shorts. He then pulled her to the bed. She said she told him she was a school going child but he could not hear, He insisted that he had married her. He put her on the bed and began to touch her thighs and all over her body. He lifted her dress. She resisted but he removed her pants, and had sexual inter course with her by removing inserting his penis into her vagina. She was all the while telling him to let her go but he could not hear of it. When he finished she did not go home but slept in his house. She remained there for the next 10 days. He would lock her in, leave her a tin to urinate in the day and bring her food. 19.That on 21st April 2021 the appellant brought her a phone and told her to call her mother. She did. Her mother sent her Ksh 200 for fare. She testified that the appellant drove her to near her home. 20.The next day her parents took her to Kiundwani Police Station where the matter was reported, she was taken to Makindu hospital. She identified the treatment documents, P3 and PRC and her birth certificate in court. 21.On cross examination she said there were other house in the place and the toilet was outside. She said that the appellant was called on 21st April 2021 and warned that he would be arrested and that is when he brought her a mobile phone of one Bernard Kilonzo and she used it to call her mother. 22.Her mother was PW2 MMG. She told the court that on the 11th April 2021 when her daughter did not come home, by 800pm she went to the home of PW3 a neighbour who had been with her earlier to find out. PW3 told her how the appellant had taken the Complainant on his m/bike. PW2 told the court that she rang the appellant who told her that he had dropped the complainant at Kavinguni Kwa Utata Stage and had not seen her since. So, PW2 assumed that her daughter had gone to her grandmother’s. By 13th she was worried and she and her husband reported to the Assistant chief that their daughter was missing. That the appellant was rand by the Assistant chief and he gave the same answer. She said the appellant’s home was visited by her husband, the Chief and the Assistant Chief and a search conducted but the complainant was not found in the house of the appellant. 23.On Cross examination PW2 claimed that her daughter was not found in appellant’s house because the appellant had told the complainant to hide in the shamba. She said she did not know Kilonzo, that she was not aware that her daughter had a relationship with one Kilonzo. 24.PW3 JM was with the complainant when the complainant boarded the appellant’s boda boda. She did not tell them where she was going. She became aware that the complainant had not restored home when her mother went to enquire about 800pm that night. She told her how the complainant had boarded appellant’s boda boda and left. 25.PW3 Dr. Nicholas Mbugua testified that the complainant went to Makindu hospital on 5th May 2021 for the filling of the P3. He testified that her genitalia was normal, though her hymen was broken. He said this was not fresh. He relied on her treatment documents. He said he could not confirm whether she was defiled. That no DNA was done. 26.No. 49068 Cpl Thadeus Kimweli from Kiundwani Police Post testified that he was the I.O who took over from PC Mlama who was transferred to Mombasa before the matter was heard. He testified that he took over the matter, read the statements and bonded the witnesses. The appellant had been arrested on 24th April 2001. On Cross examination he told the court that the report was made on 23rd April 2021, that he was not aware that one Benard Kilonzo was the main suspect. 27.The appellant was put on his defence when the prosecution closed its case. 28.He testified about the events of 23rd April 2001 when he was arrested, He told the court that PW2 told him it was not tit for tat as he had married another woman after having a relationship with her. That she told him he was not going to see his wife again. He said that on 11th April 2001 he just carried on with his boda boda work. He said that the complainant lied. That he did not defile her. 29.From the foregoing the age of the complainant was established through the certificate of birth which showed that she was born on the 21st January 2004. At the time of the offence on 11th April 2021 the complainant was distill 17 years old. 30.The complainant and the appellant were known to each other. He was not a stranger. It is not disputed that he was a boda boda rider. On the material date the evidence was the he found the complainant in the company of two other girls including PW3. He offered a lift to them and it is the complainant who boarded the m/bike. This was in broad day light. 31.In his defence the appellant avoided talking about 11th April 2001 until the trial court prompted him. He stated that the complainant lied and that the mother of the complainant was his girlfriend and that she had made up this case against him after he married another woman. He put this question to the complainant’s mother and she denied the same. 32.The trial court stated “I find that the complainant was very candid in her testimony. ..[her ] evidence was corroborated by PW3” 33.The record will show that the complainant clearly described what happened that day in clear details. PW3 only corroborated the part on how the complainant and the appellant left on a motor bike that day. What happened thereafter it was upon the prosecution to prove. 34.S. 33 of the SOA statesEvidence of surrounding circumstances and impact of sexual offenceEvidence 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. 35.The court is required to consider not only the ingredients of the offence but the evidence of the surrounding circumstances to consider whether an offence was committed as alleged and also the impact of the offence of the victim. 36.According to the complainant’s mother when her daughter came home, they spoke the following day. That her daughter asked for forgiveness and told her the truth. That she told her that she was with the appellant for the 10 days; that the appellant had told her that her he had taken her away because her mother had money, that he told her he had married her, that the appellant told her to say she was at Kibwezi so that he would not be arrested. 37.Nine out of the 10 days are not sufficiently accounted for by the complainant’s testimony that she was locked inside at day time and there were other houses in the compound. It is evident that after the first day, the complainant accepted that she was now married to the appellant and that is why she stayed. She could have left. It is only after there was threat of arrest of the appellant that everything changed. The Prosecution did not call Benard Kilonzo whose phone the complainant used to call her mother? Why? I can only draw the conclusion because he would have told the court that after the first day the complainant was not held under lock and key as alleged. 38.However, despite the above circumstances, the defilement charge relates only to the 11th April 2021. The other circumstances do not take away from the events of 11th April 2021 as between the appellant and the complainant. The appellant has not been charged with abduction but with defilement. 39.There was no reason for the complainant to lie. Or PW3 that the appellant left with the complainant. The story about the search at the appellant’s house is all hearsay has to be disregarded as neither the chief, his assistant nor the complainant’s father testified about the alleged search. 40.What is evident is that the complainant gave very clear description of what the appellant did to her. Even if she agreed to go with him for as long as she was a minor she could not have consented to the sexual intercourse. True, the medical report may not have been conclusive but it is now settled that the evidence of a complainant can be sufficient to establish a sexual offence. 41.Looking at the facts, the appellant had decided to make the complainant his wife but she was under age. The court that heard and saw her was persuaded that she was telling the truth. There is no doubt that the appellant took her with him on his motor bike in the presence of witnesses in broad day light. All these facts put together establish that the complainant was 17 the time, that there was penetration and the appellant was the perpetrator. 42.Was the sentence harsh? 43.The minimum mandatory sentence is provided for under s. 8(4) of the SOA as 15 years imprisonment. The trial court did not have the discretion to award any sentence lower than that. However, the court was required to comply with the proviso to s. 333(2) of the Criminal Procedure Code which states:333.Warrant in case of sentence of imprisonment(1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 44.In the circumstances I find that the appeal on the conviction is not merited and the Conviction for the offence of defilement c/s 8(1) as read with s. 8(4) of the Sexual Offences Act be and is hereby upheld. Consequently, the sentence of 15 years imprisonment is upheld but pursuant to s. 333(2) of the CPC it will run from 26th April 2021. 45.Otherwise, the appeal is without merit and is dismissed. JUDGMENT DATED SIGNED AND DELIVERED VIRTUALLY THIS 19TH MAY 2026MUMBUA T MATHEKAJUDGECA ChrispolAppellantMr. Musyoki