https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1088

Njuguna v Republic (Criminal Appeal 67 of 2018) [2026] KECA 1088 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1088 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 67 of 2018 M Ngugi, PM Gachoka & MB Kairaria, JJA May 29, 2026 Between Samuel Maina Njuguna Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Nakuru (J. M. Mativo, J) dated 26th October 2018 in High Court Criminal Appeal No. 305 of 2013) Judgment 1.The appellant, Samuel Maina Njuguna, was charged before the Chief Magistrate’s Court at Nakuru in Criminal Case No. 190 of 2011 with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 17th October 2011 at [Particulars Withheld] area in Rongai District within Rift Valley Province, he intentionally and unlawfully caused his genital organ, namely the penis, to penetrate the vagina of RMG, a child aged 12 years. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2.Following a trial in which the prosecution called five witnesses, the trial court, in its judgment dated 15th November 2013, found that the prosecution had proved its case beyond reasonable doubt. It convicted the appellant of the offence of defilement and sentenced him to life imprisonment. 3.Aggrieved by his conviction and sentence, the appellant filed Criminal Appeal No. 305 of 2013 before the High Court in Nakuru. In his appeal before the High Court, the appellant raised three grounds of appeal, namely that the trial court erred in law by convicting him whereas his constitutional right to a fair trial enshrined in article 50 (2) of the Constitution had been violated; in failing to comply with section 200 of the Criminal Procedure Code; and in sentencing him to life imprisonment, which is excessive (and) against the evidence. 4.Upon hearing the appeal, the High Court dismissed it on both conviction and sentence. It found that there had been no violation of his rights under article 50(2) as the record indicated that he had been supplied with the statements of all prosecution witnesses; that section 200 of the Criminal Procedure Code is not couched in mandatory terms, and no prejudice had been caused to the appellant. Regarding sentence, the court found that the sentence meted out by the trial court was as mandated under section 8(1) and 8(2) of the Sexual Offences Act in view of the age of the complainant. 5.While the appellant had not challenged the decision with respect to proof of the offence of defilement against him, the court went on to address itself to the question whether the elements of the offence had been established. It found that the age of the complainant had been proved as 10 years; that penetration had been proved by the complainant’s evidence and the medical evidence of the Clinical Officer; and that the identity of the appellant had been established. It therefore dismissed the appeal on both conviction and sentence. 6.The appellant is now before us challenging the decision of the High Court. In his memorandum of appeal dated 26th October 2018, the appellant raises four grounds of appeal which, with the exception of the final ground, had not been raised before the first appellate court. Court summarised, these grounds are that the first appellate court erred in law by: failing to note that the evidence adduced did not support the charge in respect of the age of the complainant; failing to note that the medical evidence failed to link him with the alleged offence as the spermatozoa were not seen and determined; failing to find that section 36(1) of the Sexual Offences Act was not complied with; imposing a harsh and lengthy sentence in reliance on very inconsistent and contradictory evidence; and in failing to weigh his defence against the evidence adduced. We will nonetheless address ourselves to these grounds, bearing in mind that the appellant is self- represented. 7.As this is a second appeal, our mandate is confined to a consideration of issues of law only as provided in section 361(1) of the Criminal Procedure Code. Ordinarily, on a second appeal, this Court will not interfere with concurrent findings of fact by the two courts below unless it is shown that such findings were based on no evidence at all, were founded on a misapprehension of the evidence, or that the courts acted on wrong principles in reaching the findings- see Karimi v Republic [2016] KECA 812 (KLR). 8.Before considering the appellant’s appeal, it is useful to consider the evidence presented before the trial court, as well as the appellant’s defence. 9.RM, the complainant, who testified as PW1, told the trial court that she was 12 years old and was in standard six at [Particulars Withheld] Primary School. On 17th October 2011 at about noon, she was at the farm collecting maize when the appellant, whom she identified as a neighbour, approached her and asked her to accompany him so that she could hold a rope for him. She followed him to an incomplete building with mud walls and grass roofing. She stated that the appellant removed her underpants and his own clothes and lay on her. She stated that he did ‘bad manners’ to her and covered her mouth with his palm when she screamed. She testified that she felt pain in and bled from her private parts. Thereafter, the appellant jumped out of a window in the building and fled while carrying his clothes. 10.PW1 further testified that she went home and informed her sister, TN. TN informed their mother, EN (PW2) who in turn informed their father (PW3. Her father later went with another man and called the appellant, who was their neighbour. PW1 testified that the appellant admitted that he had done ‘bad manners’ to her. She stated that the appellant was thereafter taken to the Police Station, and she was taken to [Particulars Withheld] Health Centre where she was examined. RM stated in cross-examination that she knew the appellant well as he used to come to their home to fetch water. 11.EN (PW2), the complainant’s mother, testified that on the material day, she had gone to collect some maize, leaving PW1 at the shamba. When she returned, she found that PW1 had not collected the maize and upon asking why she had not, PW1 informed her that she had pain and was unwell. PW2 stated that upon examining her, she noticed that PW1’s underpants were torn and that she had an injury on her private parts. 12.PW2 testified that at about 3.00 pm, her other daughter, TN, returned home from school and PW1 narrated to her what had happened. According to PW2, TN informed her that PW1 had stated that it was the appellant who had defiled her. PW2 stated that she and her husband went to the appellant’s home, and that the appellant admitted committing the offence. They then took PW1 and the appellant to Njoro Police Station before proceeding to Njoro Hospital where PW1 was treated and issued with a P3 form.PW2 testified that PW1 was born on 23rd December 2000 and produced her original child immunization card. 13.PW3, FG, the complainant’s father, testified that on 17th October 2011, PW2 informed him that PW1 had been defiled by the appellant, who was a neighbour. He went to the appellant’s house with other villagers and arrested him. He further testified that when they questioned the appellant, he admitted that he had defiled PW1. Both PW1 and the appellant were taken to hospital where it was confirmed that PW1 had been defiled. 14.The complainant was examined by PW4, Jacob Chelimo, a Clinical Officer at [Particulars Withheled] Health Centre, on 18th October 2011. His testimony was that upon examination, he found that PW1’s genitalia had a perforated hymen and whitish discharge; that tests revealed no spermatozoa, and that the injuries were caused by male external genitalia. PW4 produced the P3 form and treatment card relating to PW1. PW4 also testified that he examined the appellant and noted that he had sustained cuts on the forehead and swelling on both hands, apparently from a beating by a mob. 15.The final prosecution witness was No. 6xxx6 PC Kabasicho, who investigated the matter. He had received the complaint and taken the complainant and the appellant to [Particulars Withheld] Health Centre. 16.When placed on his defence, the appellant gave an unsworn statement. He stated that on the material day, he went to the shamba with his father. Later, he went to PW3’s home to ask for payment of his money, Kshs. 3500. Later, he went to the local centre where he stayed till 7.30 pm. He returned home to find PW3 and another man waiting for him. That they beat him up and accused him of committing the offence and took him to the Police Station. He denied committing the offence. 17.The appellant called Joseph Njuguna Maina as his witness. Maina’s testimony echoed that of the appellant with regard to the events of the material day. He stated that after they returned home, the appellant informed him that he was going for his money at the home of PW3. He later learnt that the appellant had been arrested and taken to the Police Station on the allegation that he had defiled PW3’s ‘son’. He confirmed in cross-examination that he and the family of PW3 were neighbours that he had known PW3 for over 35 years, and there was no grudge between them. 18.We heard this appeal on 16th March 2026. The appellant, who was unrepresented, relied entirely on his written submissions. The State was represented by learned Senior Assistant Director of Public Prosecutions, Mr. Omutelema, who also relied on his submissions, dated 15th July 2024, in opposing the appeal. 19.We have considered the record of appeal, the appellant’s grounds of appeal, and the submissions of the parties. The appellant’s challenge to his conviction and sentence relates to the age of the complainant; that the offence of defilement was not established as no spermatozoa were seen; there was no compliance with section 36(1) of the Sexual Offences Act; and in imposing a harsh and lengthy sentence in reliance on very inconsistent and contradictory evidence. He also alleges that his defence was not weighed against the evidence adduced. He has also alleged in his submissions that a crucial witness, TN, was not called to testify. 20.In order to establish the offence of defilement under the Sexual Offences Act, the prosecution must establish the age of the victim, the act of penetration, and the identity of the perpetrator. Establishing the age of a victim in sexual offences is critical. In Basil Okaroni v Republic [2016] KECA 723 (KLR), this Court stated:“We agree with the appellant that in sexual offences ascertainment of the victim’s age is crucial and the Courts have underscored the necessity of this requirement.In Criminal Appeal No. 504 of 2010 Kaingu Elias Kasomo vs Republic this Court stated thus,Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 21.Having considered the evidence on record, we are satisfied that the age of the complainant was fully established. The complainant, PW1, testified that she was 12 years old. Her mother, PW2, testified that PW1 was born on 23rd December 2000 and produced an original child immunization card for PW1. The trial court observed the complainant and recorded that she was aged 10 years and 10 months at the time of the offence. We find, therefore that both the trial court and the first appellate court properly considered the evidence and found that the age of the complainant was well established. 22.The second element to be established in defilement is penetration. The appellant complains that the medical evidence did not link him to the offence because no spermatozoa were detected. Under section 2 of the Sexual Offences Act, penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person. The absence of spermatozoa does not negate penetration. 23.PW1 testified that the appellant removed her clothes, then his trousers and underwear, and inserted his penis into her vagina. She used the language children use to describe their ordeal: he did ‘bad manners’ to her and caused her to feel pain and bleed; and he covered her mouth with his palm when she started screaming. The medical evidence by the Clinical Officer, PW4, who examined the complainant on 18th October 2011, was that PW1 had a perforated hymen and injuries caused by male external genitalia. We find that the fact of penetration was established, and the absence of spermatozoa was of no significance in the matter, noting that the complainant was examined the day after the incident. 24.The appellant also contends that section 36(1) of the Sexual Offences Act was not complied with as no DNA test was conducted. The said section grants a court discretion to direct that samples be taken for forensic and scientific testing. The provision does not make DNA testing mandatory in every sexual offence case. In this case, there was direct evidence from PW1 identifying the appellant as the perpetrator, a neighbour whom she knew well; and there was also medical evidence confirming penetration. There was therefore no necessity for the trial court to invoke the provisions of section 36(1). 25.Further, as we have noted above, there was no doubt about the identity of the perpetrator. RM knew the appellant as a neighbour who used to go to her home to fetch water. The offence occurred in the middle of the day; the complainant interacted with the appellant at close range from the time he approached her at the farm and requested her assistance with a rope and then led her to the incomplete structure where he committed the offence. 26.The complainant informed her sister TN about the offence and the identity of the perpetrator soon thereafter, and she also told her mother, PW2. The evidence of PW2 and PW3 showed that shortly after the incident, the complainant disclosed that it was the appellant, a neighbour known to the family, who had defiled her. We are satisfied that both the trial and first appellate court properly found that on the evidence, the appellant was the perpetrator of the offence charged. 27.The appellant has also complained that the trial court and the first appellate court failed to consider his defence against the evidence adduced. We note that in its analysis of the defence against the prosecution evidence, the trial court dismissed the appellant’s contention that the family of the complainant had colluded against him over a debt owed by PW3. We note also that the first appellate court considered the defence and found that the prosecution evidence irresistibly pointed to the appellant as the perpetrator of the offence. The appellant’s appeal on this ground must therefore also fail. 28.The appellant has submitted that TN, a crucial witness, was not called to testify. This is not a tenable argument. The evidence of TN, being what she was told by the complainant, would not have made a difference to the prosecution case. 29.Finally, the appellant challenges the sentence meted out against him by the trial court, which he terms as a harsh and lengthy sentence. We note that the first appellate court considered the issue of sentence and found that the trial court properly sentenced the appellant to life imprisonment upon finding that the complainant was aged 10 years at the time of the offence. It further held that the sentence was the mandatory sentence provided under the law, and it had no discretion to interfere with it. 30.We agree with the finding of the first appellate court on this issue. The Supreme Court has held that the mandatory minimum sentences under the Sexual Offences Act are constitutional-see Republic v Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) and Republic v Manyeso [2025] KESC 16 (KLR).Neither the trial court, the first appellate court nor this court has the discretion to impose a sentence contrary to that set by statute. As the Supreme Court observed in Republic v Joshua Gichuki Mwangi (supra):“67.Though sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law….” 31.It is our finding, therefore, that this appeal is devoid of merit, and it is hereby dismissed in its entirety, and the conviction and sentence upheld. DATED AND DELIVERED AT NAKURU THIS 29TH DAY OF MAY, 2026.MUMBI NGUGI......................................JUDGE OF APPEALM. GACHOKA, C.Arb, FCIArb......................................JUDGE OF APPEALMURUNGI B. KAIRARIA......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR