https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6558

Mwangi v Republic (Criminal Appeal E048 of 2025) [2026] KEHC 6558 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6558 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E048 of 2025 BM Musyoki, J May 15, 2026 Between Samuel Nyoike Mwangi Appellant and The Republic Respondent (Being an appeal against conviction and sentence dated 25th May 2023 and 20th July 2023 respectively in Chief Magistrates Court at Kangundo (Hon. D.A. Sure PM) in sexual offence case number E074 of 2021) Judgment 1.This is an appeal from the Kangundo Chief Magistrate’s court’s sexual offence case number E074 of 2021 where the appellant was charged, prosecuted and convicted of offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act particulars being that, on diverse dates between the 21st and 22nd day of November 2021 along [Particulars Withheld] in Joska location of Matungulu Sub-County within Machakos County he intentionally caused his penis to penetrate the vagina of ZWM a child aged five years. There was alternative count of indecent assault which as would be expected was not considered after the court found the appellant guilty of the main count. 2.The appellant has approached this court seeking to overturn the conviction and sentence citing the following six grounds;1.That the learned trial Magistrate erred in law and fact by failing to consider the unlawful detention in prison custody of the appellant.2.That the learned trial Magistrate erred in law and fact when he failed to appreciate that the prosecution had not proved its case against the appellant to the required legal standards, that is beyond reasonable doubt.3.That the learned trial Magistrate erred in law and fact by carrying out the whole trial process with the appellant herein being unrepresented.4.That the learned trial Magistrate erred in both law and fact by relying on extraneous evidence and by shifting the burden of proof to the appellant.5.That the learned trial Magistrate erred in both law and fact by treating the appellant as an adult for the purposes of sentencing.6.That the learned trial Magistrates erred in both law and fact by failing to consider that the sentence imposed was manifestly harsh and excessive in the circumstances. 3.This being a first appeal, this court is under the duty to re-analyse and re-evaluate the evidence produced in the trial court and come to its own independent conclusion but give allowance to the fact that it did not take the evidence of the witnesses and as such did not observe their demeanour. Prosecution’s case 4.The prosecution called four witnesses. The first witness who was one Penina Angwenyi, a clinical officer at MSF Mathare hospital. She told the court that she had worked with one Doris Kerubo who was then on leave for 4 years. She testified on her behalf and told the court that on 22/11/2021 at 3.45 pm, her colleague attended to the complainant whose date of birth was 22/8/2016. The child was accompanied by her mother. 5.She added that the victim was sexually assaulted at a mabati house without a door by a person unknown to her. After the ordeal, the assailant left her there where she slept and woke up. The mother stated that the child was found the following morning by women operating vibandas naked. The child was sad, tired and unable to walk well. She had dirt on her thighs. Vital signs were normal. She was swollen on the right eye and had visible injuries on the cheeks. 6.On vaginal examination, it was found to have second degree tear on the outside and it had pus, mud and other mucus like substance. She was bleeding a lot and it was not possible to do further examination on state of hymen. There were fresh tears on both vaginal walls. On anal examination, there was fresh tear at 120 o'clock position and it was reddened and muscles were loose. HIV test was done and anal swab taken and examined at the lab. No spermatozoa were seen and HIV test was negative. 7.The witness added that the child was put on medication and given anti-tetanus and hepatitis injections and pain killers and sent for counselling. She was referred to another medical facility for repair surgery. PRC form and P3 forms were also filled and signed on 3/12/2021which she produced together with treatment notes and medical certificate as exhibits. 8.PW2 was DM the child’s mother. She told the court that the child was born on 22/8/2016. She added that on 21/11/2021 in the evening, the child went with her friend C and in her mother’s house. The child did not come to their house from C’s and when she called the friend’s mother, she told her that she had released child.The child never came home that night and their search did not yield fruits forcing them to report to the police at Joska police station who helped them search. During the search, they spotted a pink shoe and the child’s jacket. They found another shoe then trouser and pant. They returned home at 3.00 am and continued with the search the next morning. 9.The witness added that she was called to the police station to record statement and while there, her husband called and said that the child had been found with a swollen face and bleeding on her private parts. She added that the women on the other side of the river where the child was found wrapped her with a leso as she had been found naked. The witness added that the child said that a man stole her and carried her to a mabati house without door, beat her up and inserted his thing inside hers. 10.She added that an ambulance took them to MSF hospital where the child was admitted for one week for corrective surgery. She added that while at her shop in December 2021, she saw a group of young men coming along the road and the child started shaking in fear after she saw the person who stole her. The witness asked her who it was. Three men passed by and she said he was not amongst them and she identified the assailant among a latter group of men. She pointed the one who had a green shirt who was not known to the witness and she started crying. The witness called the child’s father and police and they told her to call the police the next time she spotted the man. 11.PW2 added that the following week when the child was dropped from school, she came to her shop to take tea from where she saw the group of men again. She accused her (the witness) of having lied to her that the man had been arrested but he was still walking free. PW2 then told a friend and they followed the man who left the road and walked on isolated path leading to the river and they returned fearing for their lives and they informed the police. She added that at the time, the man had long hair at the front but he had cut the back side short. The witness identified the appellant positively in court. 12.On cross-examination, she stated that when she first saw the appellant, he had a green t-shirt with a picture on the back and on the date of arrest, he wore a green vest. She insisted that the child pointed out the appellant on the first and the second time from a group of six. The 3rd time, the witness followed the appellant who had unkempt shaggy hair at the front. 13.The child who was meant to be the third witness was taken through some questions by the court upon which the prosecution applied that she be declared a vulnerable witness which the court granted. It would appear that no arrangements were made for the child to testify as such under Section 31 of the Sexual Offences Act. 14.PW3 was one CK, a friend to both the child and PW2. She told the court that on 21/11/2021 after she closed her business, she called her daughter B and the child herein and asked them to help her take things back to her house. At about 8 pm, the child’s mother called and asked her to release the child to go home upon which B escorted the child and returned. Ten minutes later the child’s mother called to ask about her because she had not reached. 15.The witness added that, they looked for the child all over and when they could not find her, they informed neighbours and later the police who helped them do the search for the child. Those who went towards the river called and said that they had found the child’s pink shoe and they all went there and found a jacket and another shoe. She added that the items were scattered in a disguising manner as if they were meant to confuse the search team. 16.They searched until late in the night and continued the search the following morning when some women told them that a child had been found at Mwalimu farm area naked and her face swollen. It looked like she had been strangled. The woman who had found the child covered her. The witness added that she went there and confirmed then they called the others and told them. She added that the assailant beat the her and strangled her who looked afraid and traumatized. 17.The witness added that the child was taken to hospital and admitted for one week and after discharge, she spotted the assailant and told her mother. She was troubled and she shook in fear and each time she spotted the man on the road, she would start crying. She pointed the assailant out to the witness on two instances. The witness added that whenever the child saw the assailant pass, she would say ‘mtu aliniiba ni huyu’. She added that at the time, the assailant had long hair at the front and he was shaven at the back. 18.Upon cross examination, the witness said that the child went missing at 8.20 pm and spent the whole night with the appellant. She added that the child saw the appellant well. When she pointed him out, he was in a group of six people and she did not point out anyone else. 19.The 4th and the last witness was PC Peris Chepkoech Sawe stationed at Joska police station, who was the investigating officer. She told the court that on 22/11/2021 at 11.00 am, the OCS allocated this case to her as the investigating officer. The child told her that she was abducted by someone she did not know who took her to an abandoned house which had no door. The person defiled and beat her up until morning. 20.The witness restated what PW2 and PW3 told her just as what they told the court. She added that they called for ambulance and doctors from MSE hospital who came for her. She was admitted for one week and the witness visited her in hospital. Later the child’s mother called PW4 and told her that there was a young man whenever he passes by the child runs away in fear. The witness added that she spoke to the child who said that it was the man who abducted and defiled her. They traced the appellant, trailed and arrested him. She concluded that the appellant was arrested two weeks after incident. Defence case 21.When he was placed on his defence, the appellant gave a sworn statement and told the court that he did not commit the offence and that he was just arrested on the road, handcuffed and taken to police station. He concluded by stating that he did not know the victim and her parents even at the time he was testifying. 22.The prosecution did not cross-examine the appellant but in answering questions from the court, the appellant stated that many people pass on the road where he was arrested and he did not know why the child pointed him out. He added that he used to like wearing t-shirts with drawings on them having skeletons and blood tears and he had long hair as well. He claimed that when he wore those t-shirts, sometimes children ran away from him and possibly that is why the child pointed him out. He added that other people also wore those t-shirts. Analysis and determination 23.The ingredients of the offence of defilement are well settled. The prosecution must prove that the victim was a child, that there was penetration and the accused was properly identified as the perpetrator. Honourable Justice J.R. Karanja restated this position in Dominic Kibet Mwareng v Republic [2013] KEHC 1353 (KLR), where he held that;‘The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.’ 24.On the issue of age, I do not think there is serious dispute about it. The victim’s age was proved by way of birth certificate according to which she was born on 22-08-2016 while the offence was said to have been committed on 22nd November 2022. The doctors who attended to her put her age at five and the appellant did not challenge those findings. 25.The other element is penetration. The evidence of penetration may be proved by way of medical documents or sufficient oral testimonies. PW1 told the court that the child had second degree tear on her vagina and she had pus, mud and other mucus substance in her private part. She was also bleeding a lot and it was not possible to do further examination on the state of hymen. On anal examination, the muscles were found to be lose and she had to undergo surgery. All this cannot lead to any conclusion other than that she was penetrated. 26.The third element is the identification of the perpetrator. This has given me agony and pain as I read through the submissions of the parties alongside the evidence because as I shall mention later in this judgment, unnecessary and fatal gaps were left glairing open and one can only trust that the child will at some point get necessary counselling and help to dissipate the trauma she went through. 27.PW2 and PW3 were the only witnesses on the aspect of identification. Their testimony was that the assailant was identified by the child several weeks after the incident from a group of other men walking by where PW2 and the child were standing. She identified the assailant twice to PW3 and thrice to PW2 with the only description being that he had shaggy hair and shaved clean at the back and that he was wearing a green t-shirt. 28.There are two issues which trouble me here in respect of the identification. First the testimony of identification was not coming from the child. All that the child is said to have done was to say that she had spotted the person who stole her wearing in a group of young men who were walking by. It is not indicated how the child was certain that the person wearing the green t-shirt was the one who stole her. It was not indicated how the child was able to see the assailant on the night of the incident except that it was in a mabati house without a door. Was the house lit or did she mark his face or any feature when the morning came. 29.The child was not led to testify or at least identify the assailant to court or the investigating officer. The fact that a witness has been declared vulnerable does not mean that they should not testify. Section 31 of the Sexual Offences Act has a procedure to be followed once a witness is declared vulnerable. If the child was able to point out the assailant and describe him to the investigating officer, the court should have directed for provision of a special environment for her to tell it what she would have been able to do. At least an effort should have been made to ascertain whether the child could really identify the perpetrator. 30.The second thing that disturbs me is how the investigating officer took up the issue of identification. According to her testimony, the child told her that she was defiled by a person unknown to her but there is no indication whether she gave the description of the person. The investigating officer did not find it fit to attempt to visit the scene or find out whether the child could remember it. It may be that the child could not remember the place but that is not for the court to make assumption. 31.It was also mentioned that the child’s clothes and shoes were recovered along the way when the neighbours were looking for her. The child was found naked and clothes missing. It should worry anyone why the woman who discovered the child naked and swollen was not approached to record a statement or help with investigations. In my view, the investigating officer should have done more than just interviewing the child, PW2 and PW3. If these child’s clothes and shoes were recovered, and subjected to some forensics medical examination or test alongside the appellant, evidence therefrom would have been very helpful to the case. At least an attempt should have been made. 32.It is apparent that the investigating officer took a statement from the child because her evidence shows that she interviewed the child yet her testimony as record by the trial court does not show that the child gave the description of the perpetrator similar to what PW2 and PW3 claimed to have heard from the child. The investigating officer’s testimony shows that she traced the appellant, trailed him and arrested him. There is no indication that the child was part of the team or was involved in the tracing and arrest. 33.I would not expect the child to lie with an intention of framing a stranger but I am cognisant of possibility of a mistaken identity especially where the child did not give evidence or positively identify the appellant in court. True the child may have been correct in pointing out the person who stole her to PW2 and PW3 but there is also a possibility that the investigating officer arrested the wrong person since the sequence of the events leading to the arrest was not clear from the proceedings. 34.PW2 and PW3 may have been crucial witnesses in the case but could not take up the role of investigating officer or prosecutor. Whoever was part of the decision not to have the child testify under special circumstances or environment or identify the perpetrator in my view, the bungled the case and this court must trend with caution in making conclusion that the appellant was the perpetrator. 35.In view of the above, it is my holding that the identification of the appellant as the perpetrator was not conclusive or safe for a conviction. Having said so, I should address two pertinent issues of law which have been raised by the appellant. 36.The first one is that he was tried and sentenced as an adult yet he was approaching 16 years at the time the offence was committed. The proceedings show and the respondent concedes that after taking plea, the appellant was remanded at Machakos main prison where he remained until the end of the trial. This fact is confirmed by the respondent. The position of law where a child is charged and remanded is that, he should not be detained in the same facilities as adults. I find this to have been gross misadventure by the prosecution and the trial court. Section 26(2) of the Children Act provides that;‘Children deprived of liberty, detained or held in custody or committed to an institution shall be held separate from adults in facilities, including transportation facilities, appropriate to their special needs and age.’ 37.The investigating officer cannot go without blame on this open violation of the law. Article 53(1) of the Constitution demands that all state organs while handing any matters or making decisions involving a child must be guided by the principle that the best interests of the child should be of paramount consideration. There cannot be interest better than observing and respecting constitutional and statutory rights and obligations. 38.A police officer who is charged with investigating crime is bound to ensure that constitutional rights and procedural fairness are observed to the letter. This must include establishing the mental and health status of the suspects and victims of the crime which obviously includes their ages. When taking statements from the appellant, that is if he did so, the investigating officer must have made enquiries as to the age of the appellant since the police file showed that the appellant was born 12-10-2001. This should have been brought to the attention of the court and the prosecutor since the fact seems to have escaped the eye of the prosecuting counsel. 39.The respondent while conceding to this flaw seems to lay blame on the appellant for failing to bring this to the attention of the court. The appellant may have failed to bring it to the attention of the court but I would hesitate from blaming him for that. The law treats children with soft gloves and whenever they are found to be in conflict with the law, the assumption is that they are vulnerable and should be assisted in understanding or comprehending the issues they are facing. It is the duty of the person or institution handling matters involving children to uphold the children’s rights whether they asked for it or not. 40.The respondent has in its submissions conceded that the court failed in its duty to inform the appellant of his right to legal representation. Whereas failure to have legal representation does not bar continuance of a trial, a child who finds himself in a court of law must be accorded the necessary time, opportunity and facilities to access representation. It is a statutory edict and the court and the prosecution have no option to act against it. 41.Going through the proceedings, it creates impression in my mind that the appellant did to understand the seriousness of the offence he was facing which I suspect was attributable to his age and exposure. The way the proceedings were conducted was in my view in violation of the appellant’s rights as a child. To be specific the proceedings violated Section 96(3) of the Children Act which provides that;‘Without prejudice to the generality of subsection (1), a child in conflict with the law shall be entitled to legal representation at the State’s expense.’ 42.The respondent while conceding the above violation claims that the appellant suffered no prejudice as he actively participated in the trial. That argument is off the mark. Where there is an outright violation of express provisions of the law in matters of a serious nature like this one especially touching on fundamental rights enshrined in the Constitution, the court should not blindly be persuaded to invoke lack of prejudice as if it is automatically implied. 43.The other issue raised by the appellant is the failure by the court to appoint an intermediary under Section 31 of the Sexual Offences Act after the child was declared a vulnerable witness. The respondent has submitted that invoking of Section 31 of the Sexual Offences Act does not mean that one must use an intermediary. In my considered opinion, purposive interpretation of Section 31 especially Subsections 4, 5 and 6 would show that the intermediary is appointed for purposes of assisting the witness to testify. 44.In this matter, after the child was declared vulnerable, she was stood down and never testified. That was a choice and the prosecution did not insist on calling the child. In my view, use of an intermediary comes in where the prosecution desires to continue with the evidence of the witness. In that regard, there was no breach of the said Section because there was no evidence taken from the child neither did the court make any reference to anything the child said in court. 45.Having said the above, I come to the inevitable conclusion that the conviction was not safe. I have agonized over the appropriate final orders I should give in this matter bearing in mind that life of a tender innocent soul was almost shattered. Her innocence was taken away at her delicate formative years but those who are placed in positions of responsibility to bring the culprit to book betrayed her by shoddy and insufficient investigations and proceedings. When she grows up, she will want to know the fate of search for justice for her. 46.One would want to punish the perpetrator but before doing so, the court must be sure beyond reasonable doubts that the person accused of doing so was the culprit. I cannot condemn the appellant to remain in jail and carry a lifetime burden of a convict of a sexual offence where there are gaps in the process. He may be guilty but I am not a supernatural being to know what has not been revealed by production of evidence. As the old adage goes, it is better to have ten guilty persons roaming the streets than to have one innocent man rot in jail. 47.I have considered the trauma the child victim in this matter went through and I can only hope that a care and protection file was opened as in my view, the circumstances are clear that she was in need of care and protection under Sections 144(q), (u), (aa) and (bb) of the Children Act. The proceedings do not reflect that. The child in my view needs to be taken through motions and processes that will help her heal and overcome the trauma as she grows up. In the meantime, we keep the hope that the perpetrator of this heinous crime will one day be netted and face the full force of the law.My final orders in this matter are as follows;1.The conviction and sentence in Kangundo Chief Magistrate’s Court sexual offence case number E074 of 2021 dated 25-05-2023 and 20-07-2023 respectively are hereby set aside and quashed.2.The trial court is hereby directed to open a care and protection file for the child and process it under Part XII of the Children Act in the event none had been opened. DATED SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of the appellant and Mr. Mang’are for the respondent.