https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12075

Nzuki v Republic (Criminal Appeal E068 of 2024) [2026] KEHC 12075 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12075 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E068 of 2024 MW Mutuku, J July 31, 2026 Between Mutua Muluma Nzuki Appellant and Republic Respondent (Being an appeal from the conviction and sentence in Makueni Criminal Case no. E 071 by Hon. B. Bartoo (SRM) on 29th December 2022) Judgment Introduction. 1.The appellant is charged 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 charge are that on the 6th October 2022 at around 1700 hours at [Particulars Withhheld] Village in [Particulars Withhheld] Location in [Particulars Withhheld] Sub county within Makueni County, intentionally and unlawfully caused his male genital organs namely penis to penetrate the female genital organ namely the vagina of K.K, a child of four (4) years. 2.The appellant further faces an alternative charge of committing and indecent act with a child contrary to Section 11(1) of the Sexual Offence Act No. 3 of 2006. The particulars being that on the 6th October 2022 at around 1700 hours at [Particulars Withhheld] Village in [Particulars Withhheld] Location in [Particulars Withhheld] Sub county within Makueni County, intentionally and unlawfully touched female genital organ namely the vagina of K.K, a child of four (4) years with his penis. 3.Upon the conclusion of the trial, the Appellant was convicted on 29th December 2022 and sentenced to life imprisonment. 4.Aggrieved by both the conviction and the sentence, the Appellant lodged the present appeal. In the Petition of Appeal dated 29th August 2024, the Appellant challenged the conviction and sentence on several grounds, inter alia, that the trial court had erred in law and facts for imposing conviction and sentence which has already been termed as inhumane and degrading by the superior courts in a case which was rushed to conclusion emanating from a land dispute with an immediate neighbor. That the trial magistrate awarded the appellant illegal conviction and sentence beyond 7 years justified by Section 7 of the Criminal Procedure Code. 5.Further that the trial court erred in law by not putting in notice that the appellant was not taken through DNA test in line with Section 36 of the Sexual Offences Act neither was the age assessment of the minor proved to the required standards. The appellant further averred that the trial court erred in law and fact for not proving the offence beyond reasonable doubt as required by the Sexual Offences Act. 6.The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 11th December 2025. The Respondent, through the Office of the Director of Public Prosecutions, likewise filed written submissions similarly dated, urging this Court to dismiss the appeal and uphold both the conviction and the sentence. 7.This being a first appeal, this Court is duty bound to re-evaluate the entire evidence on record, subject it to a fresh and exhaustive analysis, and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32 and reiterated in Kiilu & Another v Republic [2005] 1 KLR 174. 8.The brief facts of the case are that the victim ( pw 2) told the court that she had been left at home as her mother went to work, and that is when the appellant called her. He picked a fruit for her from a baobab tree and gave it to her. He then lay her in a trench and defiled her. Later, she told her mother about what had happened. She told the trial court that she knew the appellant as Mutua, and also identified him in the dock. 9.Rose Mumo, a clinical officer based at Mutito Andei hospital examined the victim, approximately 11 hours after the alleged offence. She noted that there was redness of the vagina, and that there was a tear and lacerations on the vagina. The hymen was broken and there was a brownish discharge. Her medical opinion was that the victim minor had been defiled. 10.PK ( pw 3) is the area assistant chief. He told the court that he was informed about the alleged incident on the 7th October 2022. That the alleged offence had taken place the previous day. In view of the sensitivity of the matter, he referred the case to the police. He stated that the accused was a person known to him. He went on to state in cross examination that he did not witness the offence, and that he left the matter to the police. 11.CK (pw 4) is the mother to the victim. Her evidence was that when she came home from work, she did not find the victim at home. She called out for her, and the victim emerged from the bush. She noticed that the victim was walking with a limp. At that point, the accused Mutua, was still picking fruits. The mother to the victim decided to examine the child, and she noted that the minor had sperms on the vagina, and that there was blood too. 12.She explained to the court that she punished her daughter that evening because she wanted to teach her a lesson not to follow strangers. She went ahead and told the court that she saw Mutua in the bushes. That the accused was not known to her for long, and that they had no grudges. She talked to the accused and he denied having committed the offence. 13.The case was investigated by No. 107363 P.C Mutanu. When the matter was reported to the police station, she took the minor to the hospital. The P3 for filled by PW 1 who confirmed that there was evidence of penetration. She established the age of the victim, and in support produced a birth Certificate. In cross examination, she stated that the child stated that she was defiled by Muluma, and that she knew the accused very well. 14.When placed on his defence, the accused person in his sworn defence denied the charges and stated that the evidence produced in court was lies. In cross examination, he stated that though he had seen the victim’s mother as he picked fruits from the tree, and had been given drinking water by people near the victim’s home, she was not close by when the offence took place. Issues for Determination 15.Having considered the Petition of Appeal, the record of the trial court, and the rival submissions, the following issues arise for determination: 1.Whether the age of the complainant was proved beyond reasonable doubt. 2.Whether penetration, within the meaning of section 2 of the Sexual Offences Act, was proved. 3.Whether the Appellant was positively identified as the perpetrator of the offence. 4 .Whether the failure by the prosecution to take the appellant for DNA testing weakened the prosecution case; and 5.Whether the sentence imposed was harsh, excessive, or unlawful. 1. Whether the Age of the Complainant Was Proved. 16.The offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position was restated by the Court of Appeal in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) where the Court emphasised that all these elements must be proved beyond reasonable doubt. 17.In the present case, the charge sheet indicated that the complainant was aged four (4) years at the time of the offence. A certificate of birth produced in evidence showed that the complainant was born on 11th June 2015 and was therefore slightly over six years old on the date of the alleged offence. 18.The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well below the age of eleven years. 19.Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed. The minor variance in the stated age neither misled the Appellant nor occasioned any prejudice to his defence. 20.I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate. DIVISION -2. Whether Penetration Was ProvedPARA 21.Penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.PARA 22.The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.PARA 23.In the present case, the medical evidence disclosed redness and laceration at the vulva. The hymen was not intact, the clinical officer formed the opinion that there had been forceful penetration.PARA 24.I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt. 3. Identification of the Appellant 25.The complainant referred to the assailant as Mutua. She told the court that she knew him, and told the mother that he had defiled her.PW 3, the mother to the victim also told the court that she knew he accused, and that at the time the victim emerged from the bushes, the appellant was present at the scene picking fruits. She went on to confirm to the court that she spoke to him, and enquired about what she had been told by the victim, but the appellant denied having committed the offence. The presence of the appellant, and by extension identification by the victim is not in doubt. 26.The offence took place during the day. The mother noted that the child was walking with a limp and decided to examine her genitalia after she informed her that she had been defiled by the appellant. 27.In his defence, the Appellant did not deny that he was well known to both the complainant and her mother. Though his defence is that he did not commit the offence, in cross examination by the state prosecutor, the appellant admitted to having been picking fruits near the homestead of the complainant. He also admitted that he was given water at the homestead near the victim’s home. 28.This was therefore a case of recognition by close family members. Applying the principles enunciated in Sumba v Republic [2024] KECA 521 (KLR), I am satisfied, as was the trial court, that the identification of the Appellant was proper and free from the possibility of error. 4. Failure to Call DNA evidence and contradictions in the prosecution case. 29.The Appellant contended that the learned trial magistrate erred in law and fact by convicting him when the prosecution allegedly failed to call a crucial evidence, DNA evidence. I note that no samples were taken from the minor. The clinician noted that there was physical evidence of penetration, and no samples were taken from the appellant for analysis. The appellant further alleges that the no blood stains were noted by the clinician on the clothes worn by the victim. This evidence of the mother of the victim that she note blood stains on the vagina of the minor, not the clothes worn by the victim. 30.The appellant raised issue with the fact that the minor was beaten by the mother on the date of the alleged offence. From the evidence on record, this fact is admitted by the victim and the mother who was called as a prosecution witness. The mother admitted to having beaten the minor after she disclosed what had happened to her, after the disclosure but not before the disclosure. The evidence of the minor was mot shaken during examination, and there is no evidence to suggest that the minor was beaten in order to frame up the appellant. 5. Whether the Sentence Was Harsh or Excessive 31.The Appellant contended that the sentence imposed was harsh and excessive. 32.Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below. 33.In Hadson Ali Mwachongo v Republic [2016] KECA 521 (KLR), the Court of Appeal underscored that proof of age by cogent evidence is an essential ingredient of the offence because the sentence prescribed by law is directly dependent on it. 34.In the present case, the certificate of birth produced in evidence shows that the complainant was six years old at the time of the offence. The sentence imposed was therefore mandatory and lawful. 35.This Court therefore finds no basis upon which to interfere with the sentence imposed by the trial court. Disposition 36.Having resolved all the issues for determination, I make the following findings and orders: 1.The conviction was sound and the sentence lawful. 2.The appeal against both conviction and sentence is dismissed in its entirety. 3.The conviction for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and the sentence of life imprisonment imposed by the trial court are hereby affirmed. DELIVERED, DATED AND SIGNED ON 31ST DAY OF JULY, 2026.JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKUJUDGEIn the presence of: -Miss Omol for the StateAppellant in person present.Court Assistant – Mr. Kibet.