https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1167

Nyamatara v Republic (Criminal Appeal 146 of 2018) [2026] KECA 1167 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1167 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal 146 of 2018 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA June 12, 2026 Between Joseph Mwita Nyamatara Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Migori (Mrima, J.) dated 10th April 2017 in HCCRA No. 62 of 2016) Judgment 1.Joseph Mwita Nyamatara, the appellant herein, was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 2015 and 2016 at Kuria West sub-county within Migori County, the appellant intentionally caused his penis to penetrate the vagina of C.M. 1 a child aged 10 years. He was also charged with the alternate charge of committing an indecent act with a child contrary to section 11(1) of the sexual offences Act. He was subsequently found guilty and convicted to serve a sentence of life imprisonment on the main count.1Initials used to protect the identity of the minor 2.The evidence leading to this outcome was presented by the unsworn testimony by the minor who was aged 10 years at the time as recorded by the trial magistrate. She narrated to the court how the appellant would buy her and her friends sweets, mandazis and sleepers; he would then take them to his home, close the door, undress himself, undress them and defile them. She also narrated that in a week he would call her 3 times, give her sweets then defile her, describing the ordeal she repeatedly underwent; and identified the appellant, who is her father’s elder brother, as the perpetrator. 3.As regards penetration the two courts below relied on the medical evidence provided in the testimony of the clinical officer, PW4 who produced the treatment notes, the laboratory results, and the P3 Form which established a broken hymen, lacerations on the cervical region, to conclude that the minor had been defiled. The court held that the minor’s age was settled at 10 years as confirmed by the age assessment report prepared at Kehancha District hospital. 4.The appellant filed an appeal before the High Court of Kenya at Migori against the conviction and sentence, citing grounds that the trial court had failed to consider that the ingredients of the offence were not proved; key witnesses did not record statements nor testify at the trial; the charge was defective; and the sentence was harsh and excessive. 5.In dismissing the appeal, the learned Judge (Mrima, J) found that the three key ingredients necessary in proving the offence, namely: age of the victim, penetration; and identity of the perpetrator had been sufficiently proved; that the trial court had paid due regard to the caution regarding relying on the evidence of the complainant, invoking the provisions of section 124 of the Evidence Act, pointing out that the victim was candid and consistent as to persuade the court of her reliability as a witness, the testimony of the other witnesses, including their demeanour, to conclude that the survivor was a truthful witness. 6.The High Court reaffirmed the trial court’s findings that the minor’s evidence was clear, consistent, and credible, noting that her identification of the appellant was solidified by their familial relationship; that medical evidence presented corroborated her account, confirming penetration. The learned Judge held that the appellant’s testimony in defence did not cast any reasonable doubt on the prosecution case. The learned Judge also found that the failure to call certain witnesses was not fatal, drawing from the case of Bukenya & 5 others v Uganda 1972 EA 549. 7.Aggrieved by that outcome, the appellant has come before us on a second appeal stating that his constitutional rights were violated; the two courts below, failed to note that the prosecution avoided calling some witnesses; the ingredients of the offence were not proved; and the sentence was harsh and excessive. In the written submissions, the appellant contended that it is on record that the evidence adduced by PW1, PW2 and PW3 on penetration was impeached in cross-examination by defense case; that PW2 and PW3 depended on PW1's evidence who was already tutored by PW2 and PW3. Drawing from the decision in Bukenya & Others v Uganda (1972) EA 549, the appellant argues that the failure to get the minor’s father and her grandmother to testify as witnesses was fatal to the prosecution case; there is an indication that the missing witnesses would have provided testimony adverse to the prosecution. He points out that it is ironical that PW1 kept quiet about the multiple sexual encounters; and did not mention to anyone at that time anything she had seen and heard, until two (2) years later, PW1 alleged that the appellant’s wife knew about the offence; yet during that period, his wife was long dead. 8.In a nutshell, he urged us to find that the prosecution evidence generated, did not prove penetration beyond a reasonable doubt; it was speculative and did not meet the threshold for an adverse inference to be drawn that there was penetration. 9.In opposing the appeal, the respondent in its written submissions through the Senior Assistant Director of Public Prosecutions, Miss Ikol, argues that in its capacity as a first appellate court the High Court properly conducted its function in re-evaluating the subject matter and the evidence adduced before it. It is submitted that the 1st appellate court in arriving at its conclusion was guided by the ingredients that should be proved before a conviction is secured, namely: the age of the victim, penetration consistent with section 2(1) of the Sexual Offences, and the identity of the perpetrator. That the evidence brought forth by the prosecution was described as being persuasive; that the appellant was given ample opportunity to be heard during his appeal. 10.It is argued on behalf of the respondent that the conviction and sentence were affirmed on clear evidence of witnesses and the minor victim, who identified the appellant; as well as the medical evidence that corroborated the commission of the offence. Further, that the other witnesses also identified the appellant as a clan member clearly indicating that the appellant lived in close proximity to the victim hence the recognition of the appellant by the victim. We are urged to find that in the trial court the burden of proof was discharged by the prosecution and hence the conviction secured was safe; and which was the basis of the subsequent upholding of the first appellate court. 11.Being a second appeal, we are restricted under section 362(1)(a) of the Criminal Procedure Code to considering matters of law only. Indeed, the confines of the Court’s jurisdiction was aptly set out by this Court in the case of Dzombo Mataza v Republic [2014] eKLR, where this court expressed itself in the following terms;“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court…. By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters of fact that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 12.We have considered the record of appeal, the submissions made and the law. From his grounds of appeal and submissions filed before this Court, the appellant’s appeal turns on:i.Whether he was accorded a fair trial;ii.Whether the prosecution sufficientlyestablished the case against him.iii.Whether the appellant’s sentence was sound in law. 13.In this regard, we take note that the trial court and 1st appellate recognized the difficult situation that the minor found herself in, on three different occasions, the appellant’s wife, the minor’s grandmother, and his own brother found him defiling the minor inside his house, and all three kept a vow of hostility and silence manifesting itself in the wife of the appellant walking out of the marriage, the father disowning the minor; and the grandmother had the ‘see no evil- say no evil’ approach. 14.As a matter of fact, it took the intervention of other persons within the school to intervene and even take the minor to a rescue centre. The two courts also acknowledged the position set out in section 143 of the Evidence Act that there is no particular number of witnesses required to prove a case. Indeed, the learned Judge took cognisance of this, and affirmed that under Section 124 of the Evidence Act, a conviction can be sustained on the evidence of the victim alone if the court believes the evidence of the victim and records its reasons. 15.The appellant argues that the prosecution failed in toto to prove the case beyond reasonable doubt, maintaining that penetration, the complainant's age and the identification of the perpetrator was in doubt, making reference to the case of Charles Wamukoya Karani v Republic Criminal Appeal No. 72 of 2013. It is the appellant’s contention that the authenticity of the photocopy of the age assessment was questionable; and the document was not produced by the maker, pursuant to section 77(3) of the Evidence Act. We take note that the issue of age was confirmed by the minor’s own testimony as well as the age assessment report produced by the Clinical Officer who testified as PW4. The courts below also took into account the issue surrounding the production of a document by one who was not the maker; and invoked provisions of sections 48 and 77 of the Evidence Act. Section 48 provides:Opinions of experts1.When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons especially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.2.Such persons are called experts.While section 77 states thus:77.Reports by Government analysts and geologists1.In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.2.The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.Those two provisions are self-explanatory and do not require further dissection, suffice it to say, that the appellant is being selective in only invoking section 77 (3) of the Evidence Act which empowers the court to summon and interrogate the maker of a document/expert, without reference preceding provisions thereto. Consequently, the issue raised by the appellant in this regard, is a non-starter. 16.The appellant also complains about identification, arguing that he was not identified at the scene of crime; and faults the two courts below for relying on the allegation of a single witness (the minor). We take note that it is not disputed that the appellant was a neighbour and a paternal uncle by virtue of being the brother to the minor’s father. Further, the sexual trysts had apparently been ongoing, and was not a one-time fling. Given those circumstances the recognition of the appellant cannot by any stretch of argument be faulted. The High Court affirmed this finding. Though the appellant challenged the reliability of this identification, having evaluated the circumstances obtaining at the time of the identification and or recognition of the appellant at the scene of crime, both courts below were satisfied that the circumstances were favourable for a positive identification and or recognition of the appellant. 17.Indeed, we must emphasize that this was a case of recognition as opposed to visual identification of a stranger in difficult circumstances. We draw from the case of Benard Gitonga Karanu v Republic [2019] eKLR, which held that recognition is more reliable than identification of a stranger, and where the witness knew the accused person, the court must still examine the circumstances obtaining during the recognition but need not require a police identification parade to be conducted. 18.Consequently, we detect no error of law disclosed, as to invite our intervention. In any event, both courts properly fell back to Section 124 of the Evidence Act which allows a court to convict an accused on the sole evidence of the victim in sexual offence cases, provided that the trial court records reasons for believing that the victim was telling the truth. In this case, both courts found the minor’s testimony truthful and consistent with regard to the identification of the appellant. 18.Did the prosecution otherwise prove its case against the appellant as required? We can do no more than reiterate that CM’s account of the Sexual encounters was corroborated by PW4, the clinical officer, who confirmed that her hymen was torn and the vaginal walls were bruised. There can be no doubt that penetration was thus proved therefor. We have extensively addressed the issue as to whether the appellant was the culprit, and we find no basis upon which to impugn the identification/recognition of the appellant as the perpetrator. We are satisfied just like the two courts below that all the ingredients of the offence were unequivocally proved; and we pay homage to concurrent findings of the two courts below. 20.The appellant also challenged the constitutionality of the mandatory life sentence imposed on him. He cited the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR in support thereof. He argues that sentence given to prisoner is for rehabilitation but, punishment that is excessive serves neither the interest of justice nor those of society, drawing from Muchunu & Another vs Republic of South Africa (AR39/2022) [2024] ZAKZPHC 92; 2025 (1) SACR 257 (KZP) (11 October 2024); the appellant submits that the sentence of life imprisonment was inhuman pursuant to Article 28 of the Constitution of Kenya 2010; and a violation to human dignity. He urges us to find that the mandatory life sentence was incorrectly meted out by the trial court and affirmed by the first appellate court. 21.As regards sentence, the respondent submits that the two courts below did not err in making a finding that the indeterminate, indefinite life sentence provided under section 8(2) of the Sexual Offences Act is the minimum and statutory penalty, and not manifestly excessive. In this regard reference is made to the Supreme Court decision in Petition No. E018 of 2023 Republic v Joshua Mwangi & Initiative of Strategic Litigation in Africa ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR) which provided a clarification on the place of the mandatory and minimum sentences discussed Muruatetu II judgment did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute. Furthermore, that in the present appeal the minor victim was 10 years old at the time of the offence; pointing out that Section 8(2) explicitly provides that a person who commits the offence of defilement with a child aged eleven years or less shall upon conviction, be sentenced to imprisonment for life. We are urged to find that Parliament decreed that the defilement of the youngest, most vulnerable children warrants the most severe sentence available in the criminal justice system. 22.In addition, the respondent points out that the sentence was passed due to the vulnerability and tender years of the victim, especially considering that the appellant took advantage of a family member whom he should have instead been protecting. In support of this the respondent reiterates that the Supreme Court has recently provided binding legal guidance on the constitutional legitimacy of life imprisonment for defilement in the post- Muruatetu era, which fundamentally supports the Prosecution’s stance. In support of this proposition, the respondent draws from the decision by the Supreme Court of Kenya Judgment in Evans Nyamari Ayako v. Republic (SC Petition E002 of 2024, where this Court overturned the life sentence meted out for an offence of defilement, substituting it with 30 years; the Supreme Court, upon hearing the appeal, reinstated the life imprisonment sentence imposed by the trial Court, to re-affirm unequivocally that life imprisonment for defilement is a constitutionally sound and available sentence when the facts of the case merit the maximum penalty, there by ensuring that judicial discretion does not unintentionally dilute the appropriate severity of penalties for sexual offences. 23.As earlier pointed out, Section 361(1)(b) of the Criminal Procedure Code bars this Court from entertaining appeals against sentence unless the subordinate court had no jurisdiction to pass the sentence or the sentence was enhanced by the appellate court, or where the constitutionality of the sentence is in issue. Sentencing is a matter of discretion by a trial court and an appellate court must not replace its views on sentence with those of the trial court unless there are concrete grounds for doing so. This position of the law was recently restated by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (supra) thus:“Thus, the Court of Appeal’s jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the appellate court considered matters, they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law. Consequently, the Respondent's appeal on the grounds that his sentence was harsh and excessive was not one that the Court of Appeal could lawfully determine as it fell outside the purview of the Court of Appeal’s jurisdiction” 24.The appellant challenged the constitutionality of the mandatory life sentence imposed on him. He cited the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR in support thereof. However, the Supreme Court in yet another Muruatetu case, being Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae) [2021] KESC 31(KLR) clarified that the decision in the earlier Muruatetu I case did not apply to sentences in offences under the Sexual Offences Act; and held that statutory minimum sentences do not, of themselves, violate the Constitution. The Court drew a clear distinction between mandatory sentences, which wholly deprive courts of sentencing discretion, and minimum sentences, which merely prescribe a sentencing floor, while permitting the imposition of a higher sentence depending on the circumstances of the offence. 25.From the foregoing, it is clear that the sentence of life imprisonment prescribed under Section 8(2) of the Sexual Offences Act remains lawful, constitutional, and binding upon trial courts. Consequently, courts are not at liberty to impose sentences below the statutory minimums set out in the Sexual Offences Act. 26.Ultimately, the appeal on both conviction and sentence is devoid of merit, and is hereby dismissed. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA......................................JUDGE OF APPEALH. A. OMONDI.......................................JUDGE OF APPEALL. KIMARU.......................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR