https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12283

Munguti v Republic (Criminal Appeal E105 of 2024) [2026] KEHC 12283 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12283 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E105 of 2024 BM Musyoki, J July 29, 2026 Between Vincent Mwanzia Munguti Appellant and Republic Respondent (Being an appeal against conviction and sentence dated 5th August 2024 in the Chief Magistrates Court at Machakos (Hon. C.N. Ondieki PM) in sexual offence case number E037 of 2020) Judgment 1.This is an appeal against both conviction and sentence passed and meted against the appellant in Chief Magistrate’s Court at Machakos sexual offence case number E037 of 2020. In the said case, the appellant was charged with defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars of the offence were that on 27th day of July 2020 at around 1900 hours at [Particulars Withheld] Sub-location, Kaewa Location in Kathiani Sub-County within Machakos County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of CCB a girl aged 16 years. 2.The appellant also faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act particulars being that on 27th day of July 2020 at around 1900 hours at [Particulars Withheld] Sub-location, Kaewa Location in Kathiani Sub-County within Machakos County, he intentionally and unlawfully touched the vagina of CCB a girl aged 16 years with his penis. 3.The appellant was tried and on 5-08-2024, he was found guilty and sentenced to serve 15 years imprisonment. He seeks to overturn the said conviction and sentence relying on the following grounds;1.That the learned trial Magistrate erred in both fact and law by convicting on evidence that never met the threshold to sustain a conviction.2.That the learned trial Magistrate erred in both fact and law by not considering his defence.3.That the learned trial Magistrate erred in both law and fact by sentencing him by virtue of mandatory minimum sentences stipulated in the Sexual Offences Act.4.That the learned trial Magistrate erred in both law and fact by not considering time spent in remand custody pursuant to Section 333(2) of the CPC Cap 75 Laws of Kenya. 4.The prosecution called seven witnesses while the appellant who testified under oath did not call any witness other than himself. The prosecution witnesses were heard by Honourable E.H. Keago CM. Honourable C.N. Ondieki PM (as he then was) took over the matter and delivered ruling on no case to answer, heard the defence case after complying with Section 200 of the Criminal Procedure Code and directed on request of the appellant that the matter would proceed from where the previous court had reached and wrote and delivered the judgment. 5.In discharge of my duty to re-evaluate, re-analyse and re-consider the evidence of the witnesses before I come to my own independent conclusion, I will reproduce abridged evidence as produced in the trial court as hereinbelow. Prosecution’s case 6.The child was the first prosecution witness who the court certified as possessing sufficient knowledge to understand the nature and significance of taking an oath. The compliant proceeded to give a sworn testimony. She told the court that, at the time of the alleged offence, she used to stay with her grandmother one GM. She was in class 8 and 16 years old having been born on 5-03-2004. 7.The child told the court further that on 27-07-2020 at 7.00 pm, she and one Jacinta Mutheu were at Kavia in Kathiani coming back from unnamed lady’s home for prayers. When they reached at Vincent’s home, she was asked to go for keys to go and sleep at her uncle’s place which she refused and he went away. She added that Jacinta had gone ahead and while on her way, she met someone who covered her on the face with a jacket and when she checked, she found it was Vincent. 8.She stated further that when Vincent covered her with a jacket, he pulled her to the coffee farm where he removed her clothes including the skirt and pants. He also removed his trouser and penetrated her vagina as they lay on the ground. She added that he later removed the jacket and she was able to identify Vincent who didn’t speak to her. 9.The child testified further that, she dressed up and proceeded home where she met her grandmother and told her what had happened but asked her not to tell her mother who was away in Nairobi. She went to bed and slept and stopped going to school. She added that she stayed for three months without receiving her periods and learned that she was pregnant. She was later summoned by the school headteacher and also interrogated by the Assistant Chief one Kyalo whom she informed that she was pregnant for Vincent upon which he asked her to go to Mitaboni police station which she did and was referred to Kathiani police post. 10.The child added that she was later seen by a doctor who filled a P3 form. She identified the P3 form together with laboratory tests and treatment notes. She added that she gave birth out of the defilement on 14-03-2021 and swore that she had not had sex with anybody before. She identified the appellant in the dock and stated that he was their neighbour and an uncle to her mother. 11.In cross-examination, the complainant stated that she was able to identify the appellant by the jacket he was wearing that day which she had seen him wearing before. She added when she was recalled later for cross-examination that she did not go to the police station and that she gave birth to a normal child weighing 3.8 kilograms after seven months and a few days. She stated further that, it was a bit dark when she was defiled and that she did not see the person who had defiled her. 12.She stated further that she could not identify the defiler because of darkness and that she suspected the appellant because of his jacket which she was able to identify and that she also saw the accused’s appearance as he walked away. She denied telling the police that she didn’t know who had defiled her. She concluded that she informed her mother after 5 months and that the mother came to know after the area Chief learned that she was pregnant. In re-examination, she stated that the suspect had covered her eyes with a jacket and when the jacket was removed, she saw him and was able to identify the appellant. She stated that she feared telling her mother that she was pregnant. 13.PW2 was one MM, the child’s mother who told the court that the child was born in 2004 and she used to stay with her grandmother one GM. She added that on 30th October 2020, she was called by a neighbour known as Hellen who told her that her daughter was having issues with her grandmother and she decided to go home and find out. She added that she spoke with the child but she did not tell her what was the problem. 14.PW2 stated further that on 4-12-2020, she was called by the area Assistant Chief who required her to attend the police post as her daughter was expectant and that Mwanzia had been arrested. On 5-12-2020, she went to Kathiani police station where she recorded a statement and took her daughter to hospital for examination. The witness added that the child was found to be five months pregnant and that she delivered on 14th March 2021 and later went on to sit for her exams then they moved to Nairobi. The daughter called later and told her that it was Mwanzia Munguti who impregnated her. PW2 added that the appellant was her uncle. I have noted that on 8-11-2024, the trial court made an order that PW2 shall be recalled but the proceedings do not show that she was ever recalled. 15.The third witness one Jeremiah Wambua Makau who was the area Assistant Chief. He told the court that on 2-12-2020 at 7.00 pm, he was on normal duties at Kisongo market when members of the public informed him that there was a student of Kisongo primary school who was pregnant. He decided to visit her home on 3-12-2020 at 7.00 am and found the girl who used to stay with her grandmother alone. When he asked her why she had not gone to school, she told him that she was expectant and that on 27-07-2020, while going to the market, she met Mwanzia Munguti who grabbed her arm and took her to the coffee farm where he covered her mouth and defiled her. The witness called the in charge Nzaikoni police post who asked him to take the girl to the post after which the appellant was arrested and charged. The witness added that the girl reported that the appellant had given her Kshs 200/= so that she does not tell anyone. 16.In cross-examination, the witness stated that he didn’t witness the defilement and that he saw the victim pregnant. He insisted that the child did not lie to him and he didn’t know when the child was born. 17.PW4 was GN who was the child’s grandmother and who stayed with her at Kisongo village. She explained that the child was a daughter of her daughter who was staying in Nairobi. She added that she was the one who brought up the complainant but didn’t know her age. She added that on 3-12-2020, the girl told her that she was pregnant for Mutinda Munguti and she reported to the area Assistant Chief. She added that the Assistant Chief enquired who impregnated the girl and she identified one Mutinda. She stated further that it is the father of the girl who made a report and that she didn’t tell the police anything and that she could not recall whether she recorded any statement. 18.Paul Towett attached to Nzaikoni police post told the court that on 3-12-2020 at 10.00 am, the in charge of the post called him to go to Kisosngo to have a suspect arrested. He met the area Assistant Chief who told him that one girl aged 16 had engaged in sex and was pregnant and had gone to make her statement. He, in the company of the Assistant Chief proceeded to the home of the suspect where they arrested and escorted him the post. He stated in cross-examination that he only participated in arresting and booking the appellant. 19.One Musembi Mulinge a clinical officer testified that in 2020, he was working at Kathiani level 4 hospital. He identified a P3 form he filled on 4-12-2020 in respect of a patient who was 5 months pregnant. The patient had been defiled five months before. He did not do genitalia examination as period had lapsed. He produced the P3 form and lab requests and test results as exhibits. The lab tests result showed that she was pregnant while all other tests were negative. 20.On cross-examination, the witness stated that he did not check the reproductive organs of the patient and only relied on her history. He could not tell through examination whether there was penetration. He confirmed that a child born prematurely could still have normal weight but there was a possibility that the lungs could be premature. The witness added that in normal circumstances, a baby born pre-maturely should be placed in the incubator depending on the condition of the baby. 21.The investigating officer was the 7th and the last prosecution witness. She stated that she took over investigations from PC Joab Abok who had been transferred in 2022. She added that she had worked with the initial investigating officer and was conversant with his handwriting. She stated further that she went through the file and found that the case had been reported at Nzaikoni police post through OB number x/x/xx/2020 and referred to Kathiani police station. The witness restated what the other witnesses had recorded which is not different from what I have reproduced above. She produced the complainant’s birth certificate and alleged that the minor feared being beaten by her mother if she had told her that she was pregnant. She could not tell whether the initial investigating officer had visited the scene. 22.When she was cross-examined, PW7 told the court that the matter was first reported on 3-12-2020 and the child later delivered on 14-03-2021. She could not tell whether the complainant had been defiled earlier. She denied that the complainant mentioned the appellant to safe her face. She confirmed that there was no DNA analysis to determine who was the biological father of the child. She believed what the complainant said as to the identity of the defiler. She confirmed that she did not interrogate the grandmother of the complainant on why she failed to report the incident and denied that the complaint was an afterthought. Defence 23.The appellant told the court that he did not defile the complainant neither did he touch her vagina using his penis. He also denied that he impregnated her and pointed out that the complainant gave birth normally after 7 months. According to him it was premature birth as she should have given birth after 9 months. He also denied giving her Kshs 200/=. He denied meeting her on 27-07-2020 or having had sex with her. He concluded that at 7 pm, there is normally darkness. 24.He was cross-examined and conceded that according to a copy of the birth certificate, the complainant was 16 years. He admitted that in 2020, the complainant was living in the village and a pupil at [Particulars Withheld] primary school. He knew her because she hailed from their village. He admitted that he was arrested by the Chief and that the complainant was pregnant. He argued that if she was impregnated on 27-07-2020, she could not have given birth on 14-03-2021 which was 7 months and 14 days. He however admitted that he was not a doctor and could not tell a scientific test. He recalled that, the complainant had stated that she did not identify him. Analysis and determination 25.After giving what I consider elaborate, well researched and articulate analysis of what constitutes ingredients of the offence of defilement, the trial court reached a conclusion that the appellant was culpable of the main count and sentenced him to serve 15 years in jail and ordered further that, upon completion of the sentence, the appellant shall be subjected to police supervision for a period of five years from the date of his release in accordance with Section 344A of the Criminal Procedure Code. 26.I have considered the evidence adduced by both sides in the matter including the documentary exhibits, the submissions of the appellant dated 2nd February 2026, the submissions of the respondent dated 1st December 2025 and the reasoned judgment of the trial court. There is no dispute on what constitutes the offence of defilement. I also see no dispute as to the age of the complainant. The birth certificate and the evidence show that the complainant was born on 5-03-2004 meaning that at the time of the offence which is said to have been on 27-07-2020, the complainant was 16 years. 27.On penetration, the appellant has made lengthy submissions on the fact that the complainant gave birth in seven months and a few days after the date of defilement. According to him, the complainant who gave birth to a normal child within that period must have engaged in sex before the said date since gestation period of a human being is nine months. The appellant is not a doctor or an expert in the medical field and cannot competently speak to the age of the pregnancy by application of the normal period a woman is expected to carry it. 28.I am alive to the position that, a court is obligated to take judicial notice of the ordinary course of nature under Section 60(1)(m) of the Evidence Act. I cannot ignore the fact that science has placed gestation period of human being at between 38 and 42 weeks. However, the same science has not ruled out possibility of delivery before or after the ordinary gestation period. Pre-term pregnancies are reported often and PW6 testified that there are instances where a child would be born pre-maturely although there are attendant risks of maldevelopment. 29.PW6 who presented himself as an expert in this field testified that when he examined the complainant on 4-12-2020, the pregnancy was five months placing it within the range of the date of the alleged offence. I have not seen anything whether evidential or scientific that would rebut this evidence and the court cannot depart from the same finding. In any case, even if the complainant had engaged in sex and got pregnancy before the said date, that does not exonerate any person who had sex with her thereafter. The fact that a minor was sexually active before the date of the alleged defilement does not afford an accused person a defence. This is taken care of by Section 34(1) of the Sexual Offences Act. Honourable Justice R. Nyakundi while answering a question on the same issue in Said Salim v Republic [2021] KEHC 8251 (KLR) stated as follows;‘As regards the appellant’s defence that the complainant had relations with other men who were not brought before the court, I advert to Section and 34 (1) of the Sexual Offences Act which provides:34.(1)No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions.” 30.While addressing similar issue, Honourable Lady Justice R.E. Aburili stated as follows in Samuel Agunda Otieno v Republic [2020] KEHC 5735 (KLR) That;‘The appellant in his submissions further submitted that the complainant used to spend most of her times in men’s cottages and that even her parents were aware of her conduct no matter her age and thus she could not be said that she was a minor because she knew what she was doing.in my humble view, this ground and submission is a misconstruction of the law as defilement or lack of it is not always dependent on the previous exposure or the “experience” of the minor in sex activities. See section 33 of the Sexual offences Act. The test is always whether the accused penetrated the genitalia of the minor. The appellant cannot use the past exposure of the complainant to sexual activity as a defense against defilement. The evidence by the prosecution was that the appellant penetrated the complainant minor and that was all that was required. The law protects such minors as there is a presumption that the said minor could not consent to the act of sexual intercourse. The drafters of the law did not contemplate that an accused can escape a conviction on the ground that the complainant had previously had sexual intercourse. Accordingly, that ground of appeal fails and is dismissed.’ 31.The most contentious issue in this matter is the identification of the appellant as the culprit. Judging from the submissions, the appellant has anchored his case on his position that the complainant was not truthful, the pregnancy was premature and that he was not properly identified as the culprit. I have already held that the issue of the pregnancy and the scientific period of gestation does not invalidate the claim that the complainant was defiled on 27-07-2020. The issue left for me to decide whether the appellant had been properly and sufficiently identified as the culprit which is tied to the issue of whether the complaint was truthful. 32.The court is allowed by the law under Section 124 of the Evidence Act to convict in matters of sexual offence in reliance to evidence of a single witness if it believes that the witness is truthful. This is borne by the realization that sexual offenders would not attempt to do it in public places and it would make it hard and nonsensical to expect more than one eye witness in such matters. In my view, the court’s expression of its reasons for believing the single witness may be borne from the trial court’s observation of the demeanour of the single witness and other critical circumstances including the consistency and flow of the evidence. 33.The trial court faced with a situation of a single witness must assess the consistency or lack of it in making a decision on whether the single witness is truthful or not. It was held by the Court of Appeal in Munyoki v Republic [2017] KECA 376 (KLR) that;‘In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, the court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding who to believe. The contradictions have to be considered and weighed carefully.’ 34.In this matter, the complainant was aged 16 years and obviously approaching the age of majority and in my view expected to recollect events better and more consistent than a child of tender years. It is notable that the Honourable Magistrate who wrote the judgment did not take the evidence of the complainant and as such he fell in the same position as I am in as far as observing her demeanour is concerned. 35.In reaching its decision on identification, the trial court observed that the complainant identified the appellant after he uncovered her face since she had known him before the attack and she knew his jacket. The trial court also acknowledged that the complainant stated in cross-examination that she could not see clearly because it was dark but she saw the appearance of the appellant. He went on to find complainant as candid, reliable and a witness who could not be said to be of questionable integrity and held that it was satisfied that she was telling the truth. 36.In my view, a court which did not take the evidence of a witness cannot tell whether she was truthful by looking at a single or series of sentences in isolation of others. It must take the totality of the evidence of the witness in the context of the firmness and flow of her testimony during evidence in chief, cross-examination and re-examination. A witness who keeps changing her position touching on the critical aspects of the offence or events during examination in chief, cross-examination and re-examination does not strike me as a witness of the truth. The trial court did not express itself as to why it believed the truth in the part that the complainant said she identified the appellant and at the same time disbelieved the part where the same complainant stated that she could not identify the attacker but just suspected it was him because of a jacket he was wearing 37.As I have observed above, going by her age, the complainant should have been able to know and recollect events of a serious action as in this matter. The incident is said to have been at 7.00 pm at which time it is commonly stated by both sides to have been dark and obviously with reduced visibility. The complainant told the court that the perpetrator did not talk to her. Her face was covered during the incident and she could allegedly identify the assailant as he walked away. There was no explanation of how the complainant recognized the jacket in darkness. Obviously, it could not have been by colour as such recognition can only be possible in a background of light. She did not explain what was special with the way the appellant walked such that there would not be a possibility of an error or mistaken identity. 38.It is trite that identification whether by recognition or otherwise must be in such a way that there would be no possibility of the complainant mistaking the assailant with another person. It was held by the Court of Appeal in Peter Musau Mwanzia v Republic [2008] KECA 92 (KLR), that;‘We are aware that the law as to identification or recognition of a suspect requires that the trial court and the first appellate court both of which have the onerous duty of analysing and evaluating the evidence before coming to a conclusion, must do so with extreme care to avoid any possibilities of convicting a suspect on mistaken identification or recognition.’ 39.The trial court had a teenager before it who claimed to have been defiled on 27-07-2020 and allegedly only told her grandmother with a request that her mother should not be informed. The complainant and the grandmother kept the incidence to themselves until the headteacher and the area Assistant Chief came in the picture through members of the public. Even on 30-10-2020 or thereabout when the mother allegedly visited to talk to the complainant after she was informed of a disagreement between the complainant and her grandmother by one Hellen, the complainant did not disclose the pregnancy or which was about three months old or the defilement. The grandmother must also then have become aware of the pregnancy but still kept quiet about it. 40.It was alleged that the complainant was afraid of telling her mother about the pregnancy out of fear of being beaten. It is obvious that the complainant could not have known that she was pregnant on the same date of the incidence and her reason for asking her grandmother not to tell her mother because of fear of being beaten does not make sense to me. If indeed she was defiled, there was no fear of telling it out because she had not according to her done it before and she was aware that she had conceived. There cannot be fear of reporting a serious offence unless that fear is being instilled by the culprit or some other third party. 41.There was no proposal or allegations that the appellant threatened the complainant neither was there basis laid to justify its existence. In my view, either the complainant and her grandmother conspired to keep a secret after the complainant’s engagement in sex until the pregnancy could not be hidden anymore or there was no conversation about it between the two on the date of the alleged incidence. The latter is more likely because in her statement the grandmother (PW4) told the court that she complainant informed her of the pregnancy on 3-12-2020 which is the date she reported to the Assistant Chief. 42.This piece of evidence leads me to believe that the complainant had engaged in sex which resulted to the pregnancy and she was unable or was not willing to identify the person responsible. I am not saying this to justify sex with or among minors who have engaged in sex before the incident under trial but to demonstrate that the complainant does not come out as a person of truth. If she was not willing to talk about the pregnancy, she could as well have identified a person who would bring her minimum damage. I do not believe her testimony that she was defiled by the appellant on 27-07-2020 in the circumstances as she narrated. Similarly, I find the testimony of the grandmother unreliable. She spoke of the incident being reported to her on 3-12-2020 yet she was living with a girl who was five months pregnant and not going to school. She denied having reported to or recording statement with the police. 43.Contrary to what PW4 told the court, the Assistant Chief told the court that he discovered the complainant’s status from members of the public and he did not mention having a conversation with the grandmother. The Assistant Chief and the headteacher must be commended for acting and ensuring that the child was taken care of and following up for her to go back to school. This however does not justify placing blame on the appellant without sufficient evidence. At the same time, I find it irresistible to place some blame of the child’s mother who seem to me to have been aloof to the life of her daughter. Her testimony and conduct do not bring her out as a responsible and caring mother would be expected to do. 44.The doubts I have expressed above would have been dissipated if the investigating officer had done her work diligently and as expected. She said that she took over the file from a previous investigator and read through witness statements. She must have been aware from the statement of the appellant and the fact that he had pleaded not guilty, that there was need to link the appellant to the pregnancy. It was clear from the statement of the complainant that she was claiming that the only person she had engaged in sex with was the appellant which incidence resulted to pregnancy and birth of a child. The officer testified on 8-11-2022 while the delivery was on 14-03-2021. 45.There is available technology that the investigating officer would have taken advantage of to identify whether the appellant was the father of the child which I think was necessary in the circumstances. I am alive to the position that DNA analysis is not a must in proving defilement. However, in circumstances where doubts are reasonably harboured, the investigating officer must use all the necessary and available technology and skills to unravel the shadows. If DNA analysis had been conducted and the appellant proved to be the father of the child, there would be no basis for doubts. That was not even attempted and I must blame the prosecution for that omission. I must make inference that had the DNA analysis been done, it would have exonerated the appellant. 46.In drawing the above inference, I am guided by the observation of the Court of Appeal in Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR) where it as follows;‘In Bukenya & others Vs Uganda (supra), the former East Africa Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; that the court itself had the duty to call any person whose evidence appears essential to the just decision of the case; and that where essential witnesses are available but are not called, the court is entitled to draw the inference that if their evidence had been called, it would have been adverse to the prosecution case.’ 47.The respondent has submitted that the appellant in his mitigation accepted being the father of the child. Mitigation is never considered as evidence neither can an accused person who has already been convicted be prejudiced by what is said in mitigation. Mitigation is not a confession and coming after conviction, it cannot be used against the convict as that would amount to shifting the burden of proof to the accused person. In any case, the words of mitigation in this matter did not come from the appellant but the counsel who was holding brief for his Counsel. 48.The conclusion of the above is that I am not convinced that the appellant was properly identified as the perpetrator and I harbour reasonable doubts that he was the culprit. Consequently, the appeal succeeds, the conviction is set aside and the sentence of 15 years meted on the appellant is hereby quashed. The appellant shall be set free forthwith unless he is otherwise lawfully held. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of the appellant and in absence of the respondent.