Kinuthia v Republic (Criminal Appeal 40 of 2019) [2026] KECA 1092 (KLR) (5 June 2026) (Judgment)

Kinuthia v Republic (Criminal Appeal 40 of 2019) [2026] KECA 1092 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KECA 1092 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 40 of 2019 M Ngugi, PM Gachoka & MB Kairaria, JJA June 5, 2026 Between Peter Gichuki Kinuthia Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Nakuru (J. M. Mativo, J.) dated 24th January 2019 in High Court Criminal Appeal No. 331 of 2009) Judgment 1.In this second appeal, Peter Gichuki Kinuthia (‘the appellant’), challenges his conviction and sentence for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The appellant had been charged with the said offence before the Chief Magistrate’s Court at Nakuru in Criminal Case No. 4 of 2009. The particulars of the offence were that on 25th December 2008 at [Particualrs Withheld] in Mau Division, Nakuru District, he unlawfully had carnal knowledge of AW, a child under the age of eleven (11) years. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, the particulars as to date, time, place and victim being the same as in the first count. 2.Upon consideration of the prosecution case and the appellant’s defence, the trial court, in its judgment dated 2nd December 2009, found that all the elements of the offence of defilement had been proved. It proceeded to convict him on the main count and sentenced him to life imprisonment. 3.Dissatisfied with both his conviction and sentence, the appellant lodged an appeal before the High Court in Nakuru, being Criminal Appeal No. 331 of 2009. The appellant’s grounds of appeal before the first appellate court were that the age of the complainant was not proved; penetration was not proved; and that the burden of proof was not met. Upon hearing the appeal, the High Court (Mativo J., as he then was) dismissed the appeal in the judgment dated 24th January 2019. 4.The appellant is now before us in this appeal. In his undated memorandum of appeal, the appellant challenges the decision of the first appellate court on the basis that the learned judge erred in law and fact by: upholding his conviction and sentence but failed to note that penetration was not proved; upholding his conviction but failed to note that the age of the complainant was not conclusively proved; upholding the conviction, shifting the burden of proof and rejecting his defence, which was reasonable and truthful. 5.In his supplementary grounds of appeal which are also undated but were filed with his submissions on the appeal, the appellant contends that the first appellate court erred in law by ‘awarding a life sentence’ but failed to note that the sentence was against the spirit of the Constitution and does not serve the objectives of sentencing; in upholding his conviction and failing to consider that the legal provision for mandatory life sentence under section 8[2] of the Sexual Offences Act denies judicial officers discretion in sentencing; and in failing to consider his defence. 6.We note that the grounds raised in the appellant’s memorandum of appeal are essentially the same as were raised and determined by the first appellate court: whether the age of the complainant was established; whether penetration was proved; and whether the appellant’s defence was considered. Before we consider these grounds, it is useful to consider the evidence that was before the trial court that was considered and evaluated by the first appellate court in dismissing the appellant’s first appeal. 7.The prosecution called five witnesses. The complainant, AW, stated that she was eight years old. It was her testimony that on Christmas Day, 25th December 2008, the appellant, who was known to her, had gone to visit them with her sister; that at about 10 p.m., she was sleeping on a seat in the sitting room while her mother was in the kitchen; that the appellant, whom she called Peter, went to where she was sleeping on the seat, removed her clothes and defiled her, in her words, did ‘tabia mbaya’ to her. She stated that she did not tell her mother that day but she told her the following day. PW1 identified the appellant, whom she knew, as the person who defiled her. 8.PW2, MB, the complainant’s mother, stated that the complainant was 10 years old. On 28th December 2008, she noticed that the complainant was limping. She asked her what was wrong and when she would not answer, she beat her up; that the complainant then told her that the appellant, who was employed by PW2’s daughter (PW3), had defiled her.PW2 stated that she found AW’s panty in the seat where she had been sleeping. She informed her daughter, MW (PW3). 9.PW3’s testimony was that on Christmas day 2008, she went home with her children and two house helps, one of whom was the appellant. That the appellant slept in the sitting room while she slept in another room. That she had been drinking and did not therefore know what happened. The next day, she and her children and her house helps, including the appellant, returned to Nairobi. She received a phone call from her mother on 28th December 2008 informing her that the appellant had defiled AW. She arranged for the appellant to return to Mau Narok, where he was arrested. 10.The evidence of Tabitha Ngugi (PW4), a clinical officer from Njoro Health Centre, was that she had examined the complainant on 31st December 2008, six days after the events of 25th December 2008. It was her testimony that she noted that AW was walking with a limp; that she had bruises on her labia and a perforated hymen; that she also had a hyperemic or reddish vagina; and that she had a yellowish vaginal discharge, bruises, pus cells and gram-positive bacteria. She indicated that AW was 10 years old, and produced the P3 form with her findings. 11.The investigating officer, No. 81xxx PC Stephen Kana, arrested the appellant when he returned to Mau Narok from Nairobi. 12.When placed on his defence, the appellant gave an unsworn statement in which he stated that on the material day, he was with PW3 till midnight; and that they went home the next day. He stated that the complainant had been beaten by her mother to say that he had defiled her. He was arrested on 2nd January 2009 when he returned to Mau Narok. 13.In its decision, the trial court found that the prosecution had established the offence of defilement against the appellant, a finding that was upheld on appeal in the judgment the subject of the present appeal. 14.We heard this appeal on the Court’s virtual platform on 16th March 2026. The appellant appeared in person while Mr. Omutelema, learned Senior Assistant Director of Public Prosecutions, appeared for the State. Both parties relied on their respective written submissions. 15.In his submissions, the appellant submits, with respect to the sentence, that the imposition of a mandatory life sentence under section 8(2) of the Sexual Offences Act was unlawful and unconstitutional for fettering judicial discretion. Further, that the High Court erred in upholding both conviction and sentence without properly re-evaluating the evidence; and that his alibi defence was not considered. 16.In the submissions dated 10th September 2024, the respondent submits that the prosecution proved the charge of defilement beyond a reasonable doubt through consistent and corroborated evidence of the complainant, her mother, and medical testimony; that the complainant was proved to be a child within the meaning of the law; that penetration was established; and that identification of the appellant was free from error. Further, that both the trial court and the first appellate court properly evaluated the evidence and rightly rejected the appellant’s defence. 17.With respect to the sentence, the respondent submits that life imprisonment is lawful under section 8(2) of the Sexual Offences Act and is justified by the aggravating circumstances of the case. The respondent urges the Court to dismiss the appeal in its entirety. 18.The appellant has challenged both his conviction and, in the supplementary grounds, the sentence meted out by the trial court and upheld by the first appellate court. It is settled that our jurisdiction on a second appeal is limited by section 361(1)(a) of the Criminal Procedure Code only to matters of law. This section provides that:1.A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—(a)on a matter of fact, and severity of sentence is a matter of fact; … 19.It is only in a few exceptions, as expressed in Adan Muraguri Mungara v. Republic [2010] eKLR, that we can consider matters of fact. In that case, the Court stated:“Adan is now before us on his second and final appeal which may only be urged on issues of law (section 361 Criminal Procedure Code). As this Court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such 20.In this case, the appellant has alleged that the age of the complainant was not proved. We have examined the record, the proceedings and judgment of the trial court, and the judgment of the first appellate court. We note that the court carefully evaluated the evidence and found that the complainant was aged 10 years; that her testimony was that she was aged 8; her mother testified that she was 10 years old; the clinical officer who examined her noted in the P3 form that she was 10 years old, and the trial court had observed her and noted that she was a child below the age of 11 years. In the face of these concurrent findings of fact with respect to age, we find no basis to interfere with the decision of the first appellate court. 21.The appellant also contends that penetration was not proved.We have considered the evidence on record. The complainant’s evidence was that the appellant, who was sleeping in the sitting room at her home where she was sleeping on a seat, went to her, removed her clothes and defiled her. Her mother noticed a day later that she was limping, and the complainant informed her that the appellant had defiled her. The medical evidence of PW4 established the fact of defilement. Taken together, the evidence of these witnesses established that the complainant had been defiled, defined in 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.’ 22.A critical element of proof of the offence of defilement is the identity of the perpetrator. The evidence before the trial court left no doubt that it was the appellant. He was known to the complainant; and he was sleeping in the sitting room where the complainant and her sister’s children were sleeping. In retrospect, perhaps, the complainant’s mother, PW2, may have wondered about the wisdom of allowing a man, even one employed by her older daughter, to share a room with her young daughter. Whatever the case, on the evidence, there is no doubt that the appellant, as the medical evidence confirmed, defiled the complainant. 23.The appellant has complained that the courts below did not consider his defence. We have considered this assertion against the record. We note that the trial court evaluated the evidence and observed that the appellant's defence was that nothing happened on the material day, and that he was with PW3 until midnight when they went to sleep. 24.In its decision, the first appellate court also considered the appellant’s defence and found that the prosecution evidence, weighed against the appellant’s defence, left no doubt that the appellant did not rebut the allegations against him and did not cast reasonable doubt on the prosecution case. 25.We agree fully with the conclusions of the courts below with respect to the appellant’s defence, which we find was duly considered. The appellant’s appeal with respect to conviction must therefore fail. 26.Finally, the appellant has raised the issue of sentence which he argues is unconstitutional and against the sentencing guidelines. The arguments with respect to sentence are easily disposed of. Section 8(2) of the Sexual Offences Act provides that:A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 27.The debate that has hitherto raged with respect to the constitutionality of the mandatory sentences under the Sexual Offences Act has been settled by the Supreme Court in its decisions in Republic vs. Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) and Republic vs. Manyeso [2025] KESC 16 (KLR) in which it held that the mandatory sentences under the Sexual Offences Act are constitutional. 28.The prosecution evidence in this case established that the complainant was a child below the age of 11 years. The fact of penetration and the identity of the perpetrator were established. The only sentence that the trial court could impose, which was upheld, properly so, by the first appellate court, was a life sentence. 29.It is our finding, therefore, that the present appeal is devoid of merit, and we hereby dismiss it in its entirety and uphold both the conviction and sentence. DATED AT AND DELIVERED AT NAKURU THIS 5TH DAY OF JUNE 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