https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11367

Munene v Republic (Criminal Appeal E092 of 2024) [2026] KEHC 11367 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEHC 11367 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E092 of 2024 JM Chigiti, J July 22, 2026 Between Stanley Irungu Munene Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Murang’a Chief Magistrate Court S.O No. E013 of 2024) Judgment Brief Facts; 1.The appellant was charged, tried and convicted at the Murang’a Chief Magistrate Court for the offence of defilement contrary to section 8(3) of the Sexual Offences ActNo.3 of 2006. 2.Being dissatisfied with the findings of the trial court, the appellant has now preferred an appeal before this court vide a memorandum of appeal dated 20th December,2024 and a record of appeal dated 7th January 2025. In the aforesaid petition, the appellant has advanced five grounds of appeal upon which he contests the decision of the trial court and seeks to have the same overturned. 3.Parties disposed of the appeal by written submissions. The appellant filed submissions dated 30th May,2025 while the respondent filed submissions dated 29th January,2026. The Appellant’s case: 4.It is the appellant’s case that the prosecution only called 7 witnesses while the defence called one witness and urges the court to subject the evidence on record to a fresh exhaustive examination. He cited on Section 306 of the Criminal Procedure Code. The section provides:Section 306(1)"When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty." 5.The appellant relied on the case of PP vs Mohamed Radzi Bin Abu Bakar {2005}6MLJ 399 where the Federal Court laid down the following principles:(i)At the close of the prosecution case, the court should subject the prosecution evidence in its totality to a maximum evaluation, carefully scrutinizing the credibility of each prosecution witness. The court should take into account all reasonable inferences arising from the evidence and, where the evidence admits of two or more inferences, adopt the inference most favourable to the accused. 6.He argues that the prosecution failed by not making available all the necessary witnesses while the investigator did shoddy work by not collecting the statements of very crucial people who could have helped the court to establish the truth. 7.The accused further submits that the prosecution's evidence is riddled with contradictions and inconsistencies and has urged the court to find that those inconsistencies create reasonable doubt. In support of that argument, reliance was placed on Philip Nzaka Watu v Republic [2016] eKLR, where the Court of Appeal held that only material contradictions which go to the root of the prosecution case are capable of vitiating a conviction. On the issue of penetration: 8.He argues that the prosecution did not prove beyond reasonable doubt. It is his submissions that the prosecution relied on the oral evidence of the complainant as well as the medical evidence that was adduced in form of Post Rape Care report and gender violence recovery center report which indicated that there was penetration. 9.He argues that there was no laboratory tests that were done on the complainant which include the taking of oral, blood samples and urine samples among other. It was his submissions that those would have been essential in corroborating the oral testimony of the complainant in linking the accused to the alleged offence. On the issue of Sentence: 10.The mandatory sentence for defilement of a child aged 12 -15 years is (20) years imprisonment under section 8(3) of the Act. 11.In BW vs R KSM CA Criminal Appeal No. 313 of 2010(2019) eKLR, the Court of Appeal has considered the constitutionality of mandatory minimum sentence under the act; and opted what the Supreme Court decision held in Francis Karioko Muruatetu & Another V R. SC Petition NO. 16 of 2015 (2017) eKLR that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional; as the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; and that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 the Constitution. 12.It is settled that mandatory minimum sentence is unconstitutional and the court is bound to re-examine the sentence in view of the legislature position that offences of defilement are serious and merit stiff sentences and there has to be a good reason to depart from the indicative sentence prescribed. 13.In Dismas Wafula Kilwake (2018) eKLR, the Court of Appeal set out the factors to be considered in sentencing under Sexual Offences Act as follows:“(We) hold that the provisions of Section 8 of the S.O.A must be interpreted so as not to take away the discretion of the court in sentencing. 14.Those provisions are indicative of the seriousness with which the legislature and the society take the offense defilement. In appropriate case therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing. 15.The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of weapon to frighten or injure the victim, use of violence, the number of victims involved in the offense, the physical and psychological effect of the offense on the victim, whether the offense was committed by an individual or a gang and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted the role played by the offender in the commission of the offense and whether the offender is remorseful." The Respondent's Submissions; 16.The respondent submits that the offence of defilement is rooted on three main ingredients being the:i.Age of the victim (must be a minor).ii.Penetration.iii.Proper Identification of the perpetrator. 17.It is the respondent’s submissions that the ingredients are provided for under Section 8(1) as read with Section 8(2) of the sexual offences act No.3 of 2006 and must each be proven for a conviction to ensue. On the issue of Age: 18.The respondent relied on Alfayo Hombe Okello vs Republic where it was held that age is a crucial element in proving the offence of defilement. It is its case that PW1 testified that she was born on 30th June,2010. The offence took place between December 2023 to March 2024. Arithmetically during the commission of the offence PW1 was 13 years and 6-8 months. 19.18. It was the respondent’s further submission that it fell under Section (1)(3) of the sexual offences act i.e between 12-15 years. 20.Pw7 produced a birth certificate which showed the minor was born on 30th June,2010. (PEXH1) On the issue of penetration: 21.It was submitted that penetration is defined under Section 2 of the Sexual Offences Act. It refers to the partial or complete insertion of the genital organs of a person into the genital organ of another person. PW1 testified that the grandmother was away in Mukuyu town, in November 2023. The bedroom of PW1 removed the clothes of PW1 then he removed his then he did bad manners to PW1. 22.On further examination PW1 explained that the appellant inserted the thing that he uses to urinate into the thing she uses to urinate and when PW1 informed her grandmother she was beaten. 23.It was further the respondents’ submissions that PW5 upon examination he noted that hymen was missing but not freshly.PW5 explained that it could not be fresh since she had said the defilement started in November,2023 and he examined her on 14th March 2024. From the foregoing it is clear that there is corroboration on penetration from testimonies of PW1, PW2 and further corroboration by medical evidence through the P3 Form. 24.The prosecution prayed that this court finds that the prosecution proved the fact of penetration beyond reasonable doubt. On the issue of Identification of the perpetrator: 25.The respondent submitted that PW1 knew her uncle. This was a case of identification by recognition .PW1 had reported the appellant to the grandmother but she was beaten. PW3 testified that when she asked PW1 who was defiling her she gave the full particulars of the appellant. 26.PW2 also witnessed the appellant defiling PW1.Upon interrogation by PW7, PW1 confided that the appellant defiled her. The appellant defiled PW1 at least five times and it’s a person PW1 knew. It is a case of positive identification. 27.The respondent urged the court to find that they proved that identification by recognition beyond any reasonable doubt which has a high probative value in evidence. 28.Finally, the respondent urged the court to dismiss the appeal and uphold the conviction and sentence. Analysis and Determination 29.This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions. 30.Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court as follows:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflictingevidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). It isnot the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958]EA424.” This was also set out in the case of Kiilu& Another vs Republic [2005] KLR 174 31.In the instant case, the applicant was charged with defilement contrary to section 8(1)(4) of Sexual Offences Act where upon going through full trial process, the applicant was sentenced to mandatory minimum sentence of (15) years imprisonment as imposed by law. 32.In addressing my mind to the question whether there was the prosecution proved that there was penetration, I have considered the evidence of PW1 who testified that the grandmother was away in Mukuyu town, in November 2023 when the appellant came to the bedroom of PW, removed the clothes of PW1 then he removed his then he did bad manners to PW1. 33.On further examination PW1 testified that the appellant inserted the thing that he uses to urinate into the thing she uses to urinate and when PW1 informed her grandmother she was beaten. 34.I have also considered the testimony of PW5 a clinical officer at Muranga Level Five Hospital where upon examination he noted that hymen was missing but not freshly.PW5 explained that it could not be fresh since she had said the defilement started in November,2023 and he examined her on 14/3/2024. From the foregoing it is clear that there is corroboration on penetration from testimonies of PW1, PW2 and further corroboration by medical evidence through the P3 Form. 35.The direct, credible testimony of the child is considered the best evidence of penetration. Under Section 124 of the Evidence Act, a court can convict an accused person based solely on the victim's testimony if satisfied that the child is telling the truth. 36.Further, medical evidence from a medical examiner’s report documents physical trauma, such as fresh bruises to the labia, bleeding, tenderness, or a ruptured hymen. This evidence corroborates the victim's account. 37.From the above evidence the court is satisfied that the prosecution proved that there was penetration. On the issue of the age: 38.In the case of Edwin Nyambogo eOnsongo Vs Republic (2016) eKLR the Court of Appeal held that: The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof" . We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable. " 39.PW1 who is the victim testified her age. A and birth certificate was produced to established that she was born on 30th June, 2010. She was 14 years old at the time of giving evidence in the court on 13th April,2024. The offence happened from November,2023.As such it is clear that she was 14 years old at the time of the offence. This evidence has not been controverted by the appellant. 40.I am satisfied that there was no material error on the issue of age of the victim since there are several ways to prove age as held in various precedents. Production of a Birth Certificate being one of them. 41.Rule 4 of the sexual offences rules, the age of a minor for purposes of the Sexual Offences Act can also be proved by the oral evidence of the minor’s mother, by way of age assessment as well as by observation and common sense. Hence, in P.M.M. vs. Republic [2018] eKLR, it was held thus:“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…" 42.Section 8(1)(3) states; A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. And section 8(1)(4) states; A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. On the issue of identification of the perpetrator 43.The victim PW1 testified that she knew the appellant as her uncle. She testified that the appellant was the brother to her mother and she has been living with him and his mother in the same house. This was a case of identification by recognition.PW1 had reported the appellant to the grandmother but she was beaten. PW3 testified that when she asked PW1 who was defiling her she gave the full particulars of the appellant. 44.Upon interrogation by PW7, PW1 confided that the appellant defiled her. The appellant defiled PW1 at least five times and it’s a person PW1 knew. It is a case of positive identification through recognition. 45.It is my finding that the identification of the appellant was that of recognition. He was someone well known to the victim and thus there was no likelihood of error. In MW vs Republic {2019} eKLR the High Court at Kajiado sated as follows:“The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity.” 46.I am therefore satisfied that there was credible evidence placed before the lower court connecting the appellant with the crime. He was therefore positively identified as the culprit. On the issue of contradictions in the testimony 47.The appellant argued that the prosecution case was riddled with contradictions. The Uganda Court of Appeal in Twehangane Alfred vs Uganda held that it is not every contradiction that warrants rejection of evidence. As the court put it:-“With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (emphasis ours). 48.Further, the witness testimonies were not contradictory even upon being subjected to cross examination by the defence. Further contradictions which are not deliberate do not affect the main substance of the prosecution's case. 49.During the cross examination of the witness, the appellant failed to challenge the alleged inconsistencies and discrepancies. In any event, it is settled law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. It is my finding that this ground fails since there are no contradictions. 50.The accused has submitted that the prosecution's evidence is riddled with contradictions and inconsistencies and has urged the court to find that those inconsistencies create reasonable doubt. In support of that argument, reliance was placed on Philip Nzaka Watu v Republic [2016] eKLR, where the Court of Appeal held that only material contradictions which go to the root of the prosecution case are capable of vitiating a conviction. 51.I have carefully considered that submission alongside the entire evidence on record. 52.The law is settled that not every inconsistency in the evidence of prosecution witnesses is fatal to the prosecution's case. Human recollection is seldom perfect, and witnesses who observe the same event from different perspectives are unlikely to recount every detail with absolute uniformity. Consequently, minor discrepancies are not only expected but are often indicative of witnesses giving independent accounts rather than rehearsed testimony. 53.The duty of the court is to determine whether the alleged inconsistencies relate to material particulars touching on the essential ingredients of the offence or whether they are merely peripheral matters that do not affect the credibility of the prosecution case. 54.In the present case, the contradictions pointed out by the defence relate to peripheral aspects of the evidence. They cannot and they do not water down the veracity of the identity of the perpetrator, the age of the complainant, or the fact of penetration, which are the essential ingredients of the offence of defilement under sections 8(1) and 8(2), (3), or (4), as applicable, of the Sexual Offences Act. 55.The complainant consistently identified the accused as the person who committed the offence. That evidence was corroborated by the testimony of the other prosecution witnesses and by the medical evidence, which confirmed penetration. The evidence regarding the complainant's age was also proved by the documentary evidence produced before the court. 56.The inconsistencies highlighted by the defence neither weaken nor discredit the prosecution's evidence on the elements of the offence. They do not create any uncertainty as to the occurrence of the offence or the identity of the offender. 57.The authority of Philip Nzaka Watu v Republic does not assist the appellant. On the contrary, it reinforces the principle that only contradictions going to the root of the prosecution's case are fatal. Having examined the entire record, I find that the discrepancies relied upon by the defence are minor and inconsequential. They are insufficient to cast doubt on the otherwise cogent, consistent, and credible evidence tendered by the prosecution. 58.The court is therefore satisfied that the prosecution has proved beyond reasonable doubt. 59.Accordingly, I reject the defence founded on alleged inconsistencies in the prosecution's evidence and find that the decision in Philip Nzaka Watu v Republic is distinguishable on the facts of this case. The defence of alibi: 60.The accused stated that he was elsewhere at the time of the offence and therefore could not have committed the offence. The law on alibi is well settled. 61.In Kiarie v Republic, the Court of Appeal held that “an accused person does not assume the burden of proving an alibi; the burden remains on the prosecution to disprove it beyond reasonable doubt. The court further emphasized that an alibi must be considered in light of the totality of the evidence”. 62.Similarly, in Wang’ombe v Republic, the Court held that an alibi, if reasonably possibly true and capable of raising doubt, must result in an acquittal. 63.The same position was reiterated in Nzarov Republic, where the Court stated that the prosecution is entitled to test the alibi against the entire body of evidence, and the court must determine whether it is reasonably true. 64.I have carefully considered the accused’s defence of alibi against the prosecution evidence as a whole. 65.I find that the complainant gave a consistent and cogent account of the events, and she positively identified the accused as the person who defiled her. Her testimony was not shaken on cross-examination. The identification was made under circumstances that were favourable for recognition, as the complainant testified that she knew the accused as her uncle which evidence was not challenged. 66.The medical evidence corroborated the complainant’s account of penetration. The report made to the complainant’s relatives and the police was consistent with the narrative presented in court. 67.The accused’s alibi, on the other hand, was raised at the defence stage without any credible supporting evidence or independent witnesses to confirm his whereabouts at the material time. The court notes that while an accused person is under no obligation to prove an alibi, the credibility of the same must be assessed against the prosecution case. 68.In this case, the prosecution evidence places the accused squarely at the scene of the offence. The complainant’s testimony is credible, consistent, and corroborated in material particulars. I find no basis upon which the alibi can be said to raise a reasonable doubt. 69.The defence of alibi is considered alongside the totality of the evidence. However, where the prosecution evidence is strong, consistent, and displaces any possibility of mistaken identity, the alibi must fail. 70.I am therefore satisfied that the prosecution has disproved the accused’s alibi beyond reasonable doubt. On the issue of sentencing; 71.The Supreme court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [20241 KESC 34 (KLR) affirmed that mandatory sentences are lawful and as such this honorable court is bound by virtue of the principle of stare decisis. 72.In the Joshua Gichuki Mwangi v Republic , the Court was clear in its mind that the sentences prescribed under the Sexual Offences Act are not unconstitutional and can still be meted out in deserving cases. We therefore disabuse the notion that the sentences prescribed under the Sexual Offences Act are unconstitutional. The Court only held that when imposed merely because they are mandatory without considering the circumstances of the case, then just like in Muruatetu 1 they contravene the constitutional principles. 73.The following guidelines with regard to mitigating factors are applicable in a re-hearing sentence as per the Judiciary sentencing policy guidelines:(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the court considers relevant. 74.These guidelines in no way replace judicial discretion. They are also aimed at promoting public understanding of the sentencing process. 75.It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defence counsel to inform the court of existing guideline judgments on an issue before it. 76.The appellant has failed to demonstrate how the trial Court acted illegally in arriving at the impugned sentence. 77.In that regard, taking into consideration the nature and circumstances of the offence, the mitigation given by the appellant and the ramifications of the appellant’s actions on the complainant’s future, it is my considered opinion that the sentence of twenty years was commensurate to the offence. The sentence is within the law and is neither harsh nor excessive. This court upholds the sentence accordingly. Determination; 78.The appeal is devoid of merit.Order;The appeal is dismissed.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 22NDDAY OF JULY, 2026...................................................J. CHIGITI (SC)JUDGE