https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1588

Kariuki v Republic (Criminal Appeal E035 of 2024) [2026] KECA 1588 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1588 (KLR) Republic of Kenya In the Court of Appeal at Malindi Criminal Appeal E035 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 31, 2026 Between Wilson Waweru Kariuki Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 21st September 2022 in Appeal No. E012 of 2021) Judgment 1.This is a second appeal from the judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 21st September 2022 in Criminal Appeal No. E012 of 2021 in which the learned Judge upheld the judgment of the trial court which convicted the appellant of attempted defilement contrary to section 9(1) and (2) of the Sexual Offences Act and sentenced him to 10 years imprisonment. 2.The particulars of the offence were that, on 1st July 2020 at [Particulars Withheld] Village in Lamu West Sub-County within Lamu County, the appellant, Wilson Waweru Kariuki, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of the complainant, a girl aged 14. The appellant was also charged with the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the alternative charge were that, on the said day and place, the appellant intentionally and unlawfully caused his penis to touch the vagina of the complainant. 3.At the trial, the prosecution called 8 witnesses. The complainant, MNM (PW2), gave a sworn statement after a voire dire examination and testified that she was a class two student at [Particulars Withheld] Primary School; that, on the material day, the appellant found his way into PW2’s sleeping quarters; that the appellant undressed her and began fondling her breasts; that, when the appellant insisted on having sex with her, she firmly resisted; and that he requested her to suck his penis and attempted to force it into her mouth. 4.PW2 further testified that, undeterred, the appellant drew a knife and threatened her, demanding that she complies with his demands; that, sensing danger, PW2 decided to “cough persistently” in an attempt to alert her older sister, MK (PW6); and that PW6 peeped into the room, saw the appellant next to PW2, and locked the door from the outside. PW2 further told the trial court that, after she was rescued, she was taken to hospital for medical examination. 5.PW6 told the trial court that, on the material date at around 1:00 Am, while answering a call of nature, she heard PW2 “cough in a funny way”; that when she approached the door to PW2’s sleeping quarters, she saw the appellant standing next to PW2; that she immediately locked the quarters from the outside and dashed to inform their parents; that the area Chief and Police eventually came and arrested the appellant; and that she did not know the appellant prior to his arrest. 6.MK(2) (PW4), PW2’s mother, testified that on the material day at about 1:00 Am, PW6 awakened her and her husband, DM (PW5), and alerted them of an intruder in PW2’s sleeping quarters; that she rushed to the quarters and spoke to PW2 through the door; that PW2 told her that “there was a man with her”; that the man had undressed her, attempted to force her to suck his penis, and that he suckled her breasts; that PW5 alerted the police, who came and arrested the appellant; and that the appellant was not known to her before the incident. 7.PW5 testified and repeated the sequence of events as stated by PW4, only adding that he knew the appellant as his compound was a short distance from his. 8.PW1, Jamal Keya, the local chief, testified and confirmed that the incident had been reported to him on the material day; that he consequently alerted the OCS Hindi Police Station; and that he accompanied the arresting officers to the scene of crime. 9.The arresting officer, PC Amos Kanyako Wabwire (PW3) attached to Hindi Police Station, testified that, on 1st July 2020 at around 5:00 Am, he received instructions from his superior SGT Feisal Juma (PW7), requesting his company in responding to an incident at [Particulars Withheld] Village; that, accompanied by one Cpl. Rashid, PC Jefa, PC Kamau and PW1, he proceeded to the said village; that, on arrival, they proceeded to the quarters where PW2 and the appellant were barricaded; that on gaining access, they found the “worried” appellant, a “shaken” PW2 and a toddler confined in the room; and that he immediately arrested the appellant. 10.The investigating officer (PW7) confirmed the sequence of events as narrated by PW3 regarding the appellant’s arrest. He testified that, during his investigation, he established that the appellant was a brewer and retailer of a local alcoholic beverage; that he appeared drunk and confused during his arrest; that he was huddled at a corner of the crime scene with a knife near him, which he admitted was his; that the appellant had demanded sex and attempted to defile PW2; that, despite the indication by PW2 that the appellant had not succeeded in having intercourse with her, he nevertheless proceeded to request that she undergoes a medical examination. He (PW7) concluded his testimony by producing PW2’s original and certified copy of her Certificate of Birth indicating her date of birth as 18th September 2006 and the knife recovered at the crime scene into evidence. 11.PW8, Alex Nyoike, told the trial court that he was called by PW6 to assist in dealing with an intruder at their residence; that, in the company of one Abdalla Tunu, he answered the call for assistance; that he had seen the appellant around the village; that he had no differences with him; and that he was not “fighting” over PW6 with the appellant. 12.PW9, Edwin Chege, a Clinical Officer at Mokowe Health Centre, stated that he examined PW2 on 1st July 2020 for the alleged attempted defilement; and that, upon examination, PW2 was found to have an intact hymen. According to PW9, the complainant had normal external genitalia – both labias were alright with nothing unusual, a whitish discharge, no spermatozoa, a normal mild infection after a high vaginal swab, a normal urinalysis report and tested negative for syphilis, HIV, Hepatitis and pregnancy. PW9 formed the opinion that there was no evidence of penetration, and that PW2 was not defiled. He produced into evidence PW2’s Treatment Notes, Post Rape Care Form and P3 Form, which he had prepared. 13.In his defence, the appellant gave a sworn statement denying the charges. He stated that the case was “fake” and fabricated; that, on the material day at 12:30 Am, after returning home from guarding his crops from wild boars, and on entering into his house, he heard his estranged wife shouting from outside saying that he had an underage girl in the house; that, three weeks prior to this day, he had caught “his wife” PW6 embracing PW8 “as if they were lovers”; that he chose to forgive PW6; and that it was surprising that PW8 was the first to respond, yet he lived very far away in town while Belebele village was “in the interior”. 14.In cross examination, the appellant stated that he lived with PW6 in their compound; that the house where he was “found” used to be his and PW6’s matrimonial home; that that house had three rooms – one room shared by PW2 and PW6’s baby – the second room was his - while PW6 occupied the third; and that PW6 did not deny their spousal relations while testifying. However, the appellant confirmed that he was caught in PW2’s “house”; and that the Police did indeed arrest him from that house while in the company of PW2. 15.In its judgment, the trial court found that the age of the minor was sufficiently proved; that there was sufficient evidence that penetration did not occur; and that the appellant, while drunk and armed with a knife, intruded into PW2’s house, “undressed the minor and attempted to coerce her [PW2] into sex using threats”. The court convicted the appellant and sentenced him to 10 years imprisonment. 16.Aggrieved, the appellant moved to the High Court on appeal on the amended grounds that: the “conviction and sentence meted was unjust and unfair as there was no evidential documentary proof of [the] age of [the] victim”; and “the entire case was full of contradictions and invariances”. 17.In its judgment, the High Court (S. M. Githinji, J.) found that, at the time of the offence, the victim was 13 years old; that the charge placed her age at 14 years, but that this did not prejudice the appellant in anyway; that Section 9(2) was therefore rightly applicable; that the appellant’s defence was a mere denial; that the grudge that he raised was not captured during cross examination of PW4, and that it was an afterthought; and that the sentence was legal and well within the law. Accordingly, the court dismissed the appeal. 18.Still aggrieved, the appellant filed the instant appeal on the amended grounds that the learned Judge erred in law: by upholding his conviction yet the evidence was at variance with the charge sheet; by failing to find that the offence was not proven; by declaring him “a dangerous offender”; and by failing to find that the mandatory minimum sentence imposed violates the discretionary power of Judges and Magistrates. 19.In support of the appeal, the appellant filed undated written submissions citing S v Toms; S v Bruce [1990] 2 All SA 248; S v Mofokeng and Another 1999 (1) SACR 502 (W); S v Malgas [2001] (2) SA 1222 (SCA), all for the single proposition that mandatory minimum sentences “violate powers given to magistrates and judges by sections 216 and 329 of the CPC”; and Josephine Arrisol v Republic [1957] EA 447, arguing that imposing the maximum sentence on a first time offender (like himself) is an error of principle. He urged us to reduce his sentence. 20.In her response, Prosecution Counsel, Ms. Henrietta Mburu, filed written submissions and a list of authorities both dated 2nd February 2026. Counsel cited Isaack Ali Issack v Republic [2020] KECA 699 (KLR), submitting on the two main ingredients of an attempted offence - the mens rea, which constitutes the intention, and the actus rea, which constitutes the overt act towards the execution of the intention; and Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae) [2021] KESC 31 (KLR) where the Supreme Court reiterated that the decision in Muruatetu did not invalidate mandatory sentences or minimum sentences under the Penal Code, the Sexual Offences Act or any other statute. Counsel further submitted that the present grounds of appeal were not raised by the appellant in the High Court. She urged us to dismiss the appeal. 21.Our mandate on a second appeal, as is the one before us, is confined to consideration of matters of law only by dint of section 361 of the Criminal Procedure Code. In Karingo vs. Republic [1982] KLR 213, the Court stated:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.” 22.We have carefully examined the record of appeal, the grounds on which it is anchored, the submissions, the cited authorities and the law, and come to the ineluctable conclusion that the appellant’s appeal is grounded on completely new points of law advanced for the first time in this Court, save for the ground relating to the legality of his sentence to which we will shortly return. The remaining grounds were neither canvassed before the two courts below or argued in his submissions. Accordingly, we are not obligated to pronounce ourselves thereon. 23.This Court in Alfayo Gombe Okello v Republic [2010] eKLR underscored the importance of raising all issues in contention at the earliest opportunity at the trial and had this to say:“… the issue was not raised since the trial began and was only raised for the first time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore find, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 24.This Court in Sudi Mnalo Mweke v Republic [2023] KECA 1527 (KLR) identified itself with the holding by the predecessor to this Court in Alwi Abdulrehman Saggaf vs. Abed Ali Algeredi [1961] EA 767 where, in its holding, the Court laid down the guiding principle that the course of taking on appeal a point of law which has not been argued in the court below ought not to be followed unless the court is satisfied that the evidence upon which they are asked to decide established beyond doubt that the facts, if fully investigated, would have supported the new plea. The justification for that holding was that:“The appellate jurisdiction is conducted in relation to certain well-known principles and by familiar methods. The issues of fact and law are orally presented by counsel. In the course of the argument it is the invariable practice of the appellate tribunals to require that the judgements of the judges in the courts below shall be read. The efficiency and authority of a Court of Appeal, and especially a final Court of Appeal, are increased and strengthened by the opinions of the learned Judges who have considered these matters below. To acquiesce in such attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest importance without having received any assistance at all from the judges in the courts below.It (has) been clear for nearly a century and perhaps more, that the litigant could not take a completely new point of law for the first time on appeal and the Court of Appeal had no jurisdiction to decide a point which had not been subject of argument and decision in the county court.” 25.With regard to the appellant’s complaint on the “legality” of the sentence meted on him, it is indubitable that this Court has no discretionary power to reconsider a sentence on second appeal. Section 361 of the Criminal Procedure Code reads:361.Second appeals1.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; 26.This Court in MGK v Republic [2020] eKLR authoritatively stated that:“16.As regards the sentence, under section 361(1) of the Criminal Procedure Code severity of sentence is a matter of fact and therefore not a legal issue open for consideration by this Court on second appeal.” 27.In effect, “the Court is not concerned with the severity of the sentence in a second appeal” unless, for all intents and purposes, the sentence is unlawful. (See Oyoko v Republic [1982] eKLR.) 28.Consequently, we find that the appeal fails and is hereby dismissed. Accordingly, the judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 21st September 2022 is hereby upheld. Orders accordingly. DATED AND DELIVERED AT MALINDI THIS 31ST DAY OF JULY, 2026.A. K. MURGOR………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.……………………………………JUDGE OF APPEALG. W. NGENYE-MACHARIA………………………………JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR