https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8991

Mwirigi v Republic (Criminal Appeal E095 of 2024) [2026] KEHC 8991 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEHC 8991 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal E095 of 2024 HM Nyaga, J June 16, 2026 Between Robbins Mwirigi Appellant and Republic Respondent (Being an appeal against the judgment on conviction and sentence delivered on 14TH AUGUST 2024 by Hon. L W. Maina (R.M) at Meru Sexual Offence Case No. E095 of 2024) Judgment Background: 1.The appellant was arraigned before Meru Chief Magistrates court facing a charge of defilement contrary to section 8(1) and (3) of the Sexual Offences Act. The particulars were that on 11/01/2024 at [Particulars Withheld], Imenti North sub-county within Meru County he intentionally caused his penis to penetrate the vagina of A.W. a child aged 14 years. 2.In the alternative, the appellant faced a charge of indecent act with a child, contrary to section 11(1) of the said Act. The particulars were that on the same dates and place the appellant intentionally touched the buttocks, breasts and vagina of A.W a child aged 14 years with his penis. 3.The appellant denied the charges. After a full trial, he was found guilty, convicted and sentenced to twenty (20) years imprisonment. The appeal 4.Aggrieved by the conviction and sentence, the appellant lodged a petition of appeal dated 4/9/2024 in which he set out the following grounds:a.That the learned trial magistrate erred by convicting the appellant on the instant charge in view of uncorroborated evidence, hearsay, grave contradiction and inconsistencies in the evidence tendered by the prosecution and a miscarriage of justice was thereby occasioned.b.That the learned trial magistrate erred in law and facts by failing to consider the appellant explanation and evidence in defence, presentencing report filed in court and subsequently dismissing it as wanting, inconveniencing, hearsay and a mere denial which did not challenge and /o tilt the weight of prosecution’s case.c.That the learned trial magistrate erred in law and facts by convicting the appellant whereas the case against the appellant on the instant charge was not proved to the required standard of proof beyond reasonable doubt to warrant the accused being convicted.d.That the learned trial magistrate erred in law and facts by shifting the burden of prove to the accused person whereas it trite that an accused person does not assume any burden to prove his innocence in a criminal case.e.That the judgement of the learned trial magistrate is against the weight of evidence on record and is bad in law.f.That the learned trial magistrate erred in law and fact for convicting and sentencing the appellant on uncorroborated evidence from prosecution witnesses mostly who were minors and who did not meet the standards threshold of credible witnesses.g.The learned trial magistrate erred in law and facts by meting out an excessive and harsh sentence in the circumstances herein.h.That the learned trial magistrate erred in law and facts by convicting and sentencing the appellant herein without considering the time duration he had spent in remand during the whole hearing of the case. Appellant’s submissions 5.The appellant added more ground of appeal in his submissions, which were as follows;a.The learned trial Magistrate erred in law and fact by convicting the Appellant on the basis of uncorroborated evidence, hearsay, grave contradictions, and inconsistencies in the prosecution's evidence, thereby occasioning a miscarriage of justice.b.The learned trial Magistrate erred in law and fact by failing to adequately consider the Appellant's explanation, evidence in defence, and the pre-sentencing report filed in court, and by dismissing the same as inconvenient, hearsay, or a mere denial without proper evaluation.c.The learned trial Magistrate erred in law and fact by convicting the Appellant when the prosecution had not discharged its burden of proving the case beyond reasonable doubt as required by law. 6.The appellant further submitted that the learned trial Magistrate erred in law and fact by improperly shifting the burden of proof to the Appellant to prove his innocence, contrary to the established principle that an accused person bears no such burden in criminal proceedings. That the judgment of the learned trial Magistrate is against the weight of evidence on record and is bad in law. That the learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant on the basis of uncorroborated evidence from prosecution witnesses, the majority of whom were minors who did not meet the required threshold of credible witnesses. That the learned trial Magistrate erred in law and fact by meting out an excessive and disproportionately harsh sentence having regard to the circumstances of the case. That the learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant without taking into account the period he had spent in remand custody throughout the entire hearing of the case. Respondent’s submissions: 7.The respondent submitted that the evidence adduced proved the key ingredients of the offence. 8.On sentence, the respondent urged the court to note the age of the victim and that the appellant used the play station shop as a smokescreen to peddle his perversion. Analysis and Determination: 9.Being a first appeal, the court’s duty is as was set out in Okeno -Vs- Republic (1972) EA 32 where it was held that:“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 the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.” 10.Similarly, in Kamau Njoroge vs Republic [1987] eKLR, the Court of Appeal stated:“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect.” 11.With this in mind, I will look at the evidence adduced albeit in a summarised manner in the course of this judgment. 12.As was correctly pointed out by the trial court, the key ingredients constituting an offence of defilement are:a.Age of the victim,b.Proof of act of penetration,c.Identification of the perpetrator causing the act of penetration. 13.In Dominic Kibet Mwareng vs Republic (2013) eKLR, the court reiterated this when the learned judge noted that:“The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.” 14.There is really no dispute as to the age of the complainant. She told the trial court that she was 14 years old at the time of the trial. The complainant’s age was assessed at that age and was duly confirmed by the certificate of birth produced as an exhibit. 15.In addressing the question of penetration, I will look at the evidence adduced. 16.The complainant told the trial court that when her brother called her, she went to the appellant’s shop where she met the appellant. That the appellant stripped her skirt and made her bend over, and then he removed her panty. He then bended her buttocks and then penetrated her. At that time, S (PW3) was busy on the play station game. 17.S (PW3) told the court that the appellant sent him to call the complainant, which he did. He confirmed that as he was playing the video game the appellant and the complainant were on a seat behind him. 18.MA (PW4) told the court that when she went to the playstation shop, she saw the accused standing behind the complainant. He bent her over and then did bad things to her. On seeing her he stopped. 19.After the incident the complainant was examined by a medical officer and it was confirmed that there was evidence of penetration. 20.Penetration is defined at section 2 of the Act as follows:“...the partial or complete insertion of the genital organs of a person into the genital organs of another person;" 21.The evidence of the children witnesses was corroborated by the clinician’s finding that the complainant’s hymen was freshly torn and that there was medical evidence of penetration. 22.The term “bad things” must be interpreted in the context of the circumstances. It clearly meant that the appellant had sexual intercourse with the complainant. 23.Contrary to the appellant’s submissions, the evidence of the complainant was duly corroborated by MA. 24.Looking at the evidence adduced there was proof of penetration. 25.Was the accused identified? 26.The three child witnesses at the play station shop placed the appellant at the scene. 27.The accused’s defence confirmed that the complainant was in his shop together with the other children. He denied having committed the offence. 28.I find that the defence that was adduced to have been too weak to displace the overwhelming evidence adduced by the prosecution. 29.Therefore, I am satisfied that the appellant was duly identified. 30.Having considered the evidence, I come to the same conclusion that all the ingredients of the offence of defilement were proven. 31.Therefore, I uphold the conviction. 32.On sentence, it is noted that the complainant was a child with special needs. It is clear that the appellant was aware of this and he specifically targeted her, having sent S to call the complainant. He was brazen enough to defile the complainant in the presence of S, who he kept distracted with the video game he was playing. MA arrived while the accused was in the middle of his vile action. 33.The evidence points to the appellant being a sexual pervert. The trial court had the option to mete out a stiffer sentence which would have been thoroughly deserved. 34.I find that the sentence meted on the appellant is in line with the Act, which provides for a minimum sentence of twenty (20) years imprisonment. I uphold the same. 35.The trial magistrate duly applied section 333(2) of the Criminal Procedure Code by ordering that time be computed from 15th January 2024, when he was first remanded into lawful custody. 36.In conclusion, the appeal is hereby dismissed. DATED, SIGNED & DELIVERED AT MERU THIS 16TH DAY OF JUNE, 2026.H. M. NYAGAJUDGE