Julius Nyerere Kinyua v Republic

4. The High Court decision aggrieved the appellant, which precipitated this appeal on the grounds that the ingredients of the offence of defilement were not proved and that the court failed to consider the appellant’s defence. 5. This being a second appeal, the Court’s mandate is restricted to addressing matters of law only, as circumscribed by section 361(1)(a) of the Criminal Procedure Code. Further, the Court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are not based on evidence or are based on a misapprehension of the evidence, or where the courts below acted on wrong principles in arriving at the findings, as stated in Karingo & 2 Others vs Republic [1982] KECA 23 (KLR) where it was 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. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did.” 6. Before addressing the grounds, we will summarise the evidence presented to the trial court to appraise ourselves of the facts of the case in order to address the appellant’s grievances. 7. PW1 W.K., the complainant, recalled that on 16th September 2018, at around 8:00 p.m., she was sent by her mother, JN (PW2), to pick milk from their neighbour, Betty Karoki. She carried a spotlight with her, and on the way back, she met the appellant, who held her by her neck, covered her mouth, pulled her into a nearby shamba, forcefully removed her clothes, laid her on the ground, and inserted his penis in her vagina, defiling her. After he was through, he went on his way, leaving her in the shamba. 8. Her uncle (PW3) found her lying down beside the road crying, and she informed him of what had transpired. He took her home, and she told PW2, who called for boda boda, and they went to the police station, where she was issued with a P3 form and referred to the hospital for treatment. Upon return to the police station, she found the appellant there, having been arrested by members of the public. 9. PW1 testified that the appellant was someone well known to her for close to seven (7) years as a neighbour. She further stated that she had recognised the appellant by shining the spotlight on his face and by his voice when he spoke. She informed the court that she was born in 2003. 10. PW2 J.N., PW1’s mother corroborated the evidence of PW1. She stated that the appellant was her immediate neighbour. She testified that PW1 narrated the whole ordeal to her in the presence of PW3, PW1’s cousin. She added that before they went to the police station, she reported the matter to the sub- area manager (PW4). She further stated that on the same night, she went to the crime scene with PW1 and Gitonga, and later on 18th September 2018, she revisited the scene with PW1 and the police officers. She noted that there was no house in the vicinity of the place, and that the distance between her homestead and the scene of the crime was about half a kilometre. 11. She confirmed that they reported the matter to the police, and PW1 was issued with a P3 form and was treated at Githongo Hospital. She confirmed PW1’s age was 15 years old at the time of defilement and produced the birth certificate, which showed that she was born on 9th June 2003. She also stated that she handed over the clothes PW1 was wearing on the material day to the police. 12. PW3, B.N., recalled that on that day, while he was on his way home from work, the appellant passed him and shortly thereafter he heard cries on the feeder road and decided to find out what was happening, when he found PW1, his cousin, crying and upon inquiry, she told him that the appellant had defiled her. He noticed PW1’s clothes were muddy, and she was holding her panties. He took her to PW2. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1468/eng@2026-07-24 2

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13. PW4, Romano Kinoti M'Rinkanya, the area manager in charge of community policing, testified that he was in the company of PW7, who corroborated his evidence, searching for goats that were reported stolen, when he received a call from PW1’s father, who informed him that his daughter, PW1, had been defiled by the appellant. 14. They immediately proceeded to the appellant’s home, and when they inquired if he was around, his child responded that he was not around. Since they suspected the appellant was in the house, some men forced entry, brought him out, and took him to the police station. On cross-examination, PW4 testified that it was not the first time that the appellant had been accused of rape and/or defilement and noted that he had previously been convicted and sentenced to 9 years’ imprisonment for rape. Additionally, he had been accused of raping an elderly woman and disappearing, only to resurface. 15. PC Samson Mindoti (PW5), the investigating officer, testified that PW1 and PW2 reported the incident at the police station on the same day the incident was said to have occurred, which was 16th September 2018. He booked the report and advised PW1 to go to the hospital for treatment. He confirmed that he had visited the scene of the crime, and later, the appellant was brought to the station by PW4, PW7, and members of the public. After investigations, he charged the appellant with the offence. He confirmed that he was given PW1’s clothes: a muddy pair of pants and a torn biker jacket, which PW1 was wearing on the material day. He was also issued with PW1’s birth certificate, which established that she was born on 9th June 2003. 16. Dr. Samuel Mutegi (PW6), the Senior Medical Officer at Githongo Hospital, produced the P3 form that had been filed by Mr. Mbogori, the clinical officer, in the conduct of the matter. It was noted that on examination, it was established that there were bruises on PW1’s right hand and face, and her hymen was broken. Analysis of the vaginal swab revealed a whitish, cream- coloured discharge with numerous pus cells and epithelial cells, indicating infection and friction. It was his opinion that PW1 had been defiled. 17. Eric Mwenda (PW7), the Chairman of Nguchia Men Association, testified that he was called by PW2 and informed that her daughter had been defiled by someone she knew. Together with other men, they went to PW2’ s house, and she narrated to them what had happened to her daughter. They all went to the appellant’s house, and upon arrival, they found the door locked using a padlock from the outside. They tried calling his name in case he was inside the house, but he did not respond. They then heard a small child inside the house talking. They pushed the window open when the child told them her father was not at home. They suspected foul play and asked one Kiija to enter through the window to check whether the appellant was in the house. He was found under the bed. They lifted him out of the house through the window and escorted him to the police patrol base. 18. At the close of the prosecution’s case, the trial court found the prosecution had established a prima facie case and placed the appellant on his defence. He gave a sworn statement and called one (1) witness. He testified that, on the material, he went to church with his child, then went to collect his debt, and thereafter proceeded home since his wife had gone to her home. Later, his brother, DW2, came, and they spent the rest of the day together. At around 9:00 p.m., a crowd gathered at his home, and his brother ran away while he and his child went inside. He stated that he then heard a woman say that “those people should be killed”, and when asked why, she said it would bring the land issue to an end. He alleged that he had a land case with the people who broke into his house and arrested him. 19. DW2 gave a similar story to that of the appellant. He testified that on the material day, he had spent time with the appellant and his child in the appellant’s homestead until around 9:00 p.m., when a crowd of people came to the homestead, saying people should be killed. In cross-examination, he stated that the said people entered the house, flushed him outside and started to assault him. When he tried https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1468/eng@2026-07-24 3

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to intervene, the crowd turned on him and started to assault him, too. They later took the appellant to the police. 20. In the judgment dated 27th June 2019, the trial court found that the prosecution had proved beyond reasonable doubt that PW1 was a child aged 15 years. On the element of penetration, the trial court found that there was proof of penetration characterised by the perforation of the hymenal membrane and presence of infection as observed by PW6 and also because of PW1’s torn garment, and the panties she wore on the material day were muddy. 21. On identification, the trial magistrate found that the perpetrator was ably recognised by PW1, being aided by a torch. Further, the appellant was her neighbour for a period of seven (7) years. The trial magistrate found that there was no error in identification and was satisfied that PW1 was truthful and had given an honest and accurate account of what transpired, which was corroborated by the other prosecution witnesses. 22. In regard to the appellant’s defence, the trial magistrate found that the same was an afterthought and dismissed it. 23. The High Court, in a judgment dated 3rd February 2020, held that the ingredients of the offence of defilement were proved. With regard to the appellant’s defence, the Judge agreed with the trial magistrate that the same was an afterthought. As regards the sentence, the learned Judge found no reason to disturb the discretion of the trial magistrate. He thus dismissed the appeal for lack of merit. 24. The appellant filed submissions before us, wherein he argues that the prosecution failed to establish the necessary ingredients for a conviction for defilement and relies on the case of Charles Wamukoya Karani vs the Republic, Criminal Appeal No. 72 of 2013, where the court established the ingredients of defilement. 25. Regarding the complainant’s age, the appellant contends the victim's age was never legally proven as no birth certificate or formal documentation was produced in court, he places reliance in support of his contention on Kaingu Elias Kasomo vs Republic Criminal Appeal No 504 of 2010, where the court held that age is a critical component that must be proved with credible evidence as it dictates the sentence. He adds that the medical officer (PW4) failed to prepare a professional age assessment report, instead relying on the complainant's own statement. In support, he relies on Francis Omuroni vs Uganda Criminal Appeal No. 2 of 2000, emphasising that age must be proved by credible evidence, such as a birth certificate or medical age assessment. As a result, the court failed to give the appellant the benefit of the doubt and cites Alfayo Gombe Okello vs Republic [2010] KECA 319 (KLR), where the Court reiterated that the age of the child must be proved beyond a reasonable doubt. 26. On penetration, the appellant argues that the evidence presented was insufficient and faults the trial court's reliance on a torn hymen and the presence of infection as proof of penetration and argues that a ruptured hymen is not definitive proof of sexual intercourse, as it can be caused by physical activities, medical examination, or injury and argues further that the absence or rupture of a hymen is an "erroneous assumption" of proof, due to other factors. In support of this contention, he relies on P.K.W vs Republic [2012] KECA 103 (KLR). 27. The appellant further questions the possibility of the act occurring while the victim was allegedly tied by both hands and feet without sustaining other physical injuries. Reliance is placed on Mark Oiruri Mose vs R [2013] KECA 67 (KLR). 28. On identification, the appellant submits that he was not conclusively identified as the perpetrator and that the conditions for visual identification were poor, as the incident occurred at 8:00 p.m. in darkness. He argues the victim’s reliance on a spotlight was insufficient, and its intensity was never tested. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1468/eng@2026-07-24 4

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29. He submits further that PW1 had initially stated she did not know the assailant and failed to provide a description to the police before being asked to identify the appellant at the station. Further, no proper identification parade was conducted, making the identification vague and unlawful. To buttress the point that visual identification must be approached with great care, he relies on Joseph Muchangi Nyaga & Another vs Republic [2013] KECA 88 (KLR) and John Waithaka Chege vs. Republic [1979] KEHC 14 (KLR). He also cites the case of Gikonyo Karume & Another vs Republic [1980] KLR 23, as he argues that the trial court ought to have inquired into the nature, source, and intensity of the light during identification. 30. The appellant submits further that his defence was not considered. He states that the burden of proving the falsity of an alibi lies wholly on the prosecution and never shifts to the accused, as provided for by section 107(1)(2) of the Evidence Act. He adds that the prosecution must satisfy the court of the accused's guilt beyond reasonable doubt, even when an alibi is presented. He places weight on the evidence of DW2, who testified that he was with the appellant up to the point of his arrest. He also contends that the prosecution failed to invoke section 309 of the Criminal Procedure Code to seek leave to provide evidence to rebut the alibi. He also noted that the arresting officer was not called to testify. 31. Learned counsel for the respondent filed submissions dated 28th April 2025, and argues that this being a second appeal, the Court should only consider points of law, noting that the appellant has not provided tangible grounds for appealing against the conviction. He contends that a second appellate court should respect the concurrent findings of fact made by the two lower courts unless those findings are unsupported by evidence. Counsel maintains that the first appellate court correctly re-evaluated the evidence as required by law before reaching its conclusion. 32. Having duly considered the record, the appellant’s grounds of appeal and the rival submissions, various case law cited and the law, we form the view that there are two issues for our consideration, namely i. Whether the elements of the offence were proved; and ii. Whether the appellant’s defence was considered. 33. In order for the prosecution to prove the elements of the offence of defilement it had to establish the identity of the perpetrator of the offence; that penetration occurred; and prove the age of the victim. 34. The record reveals that the learned Judge concurred with the findings of the learned trial magistrate that the prosecution had indeed established its case beyond any reasonable doubt. 35. On age of the victim, the trial magistrate held that: “ It was the prosecution's case that the complainant was 15 years of age. The burden to prove the complainant's age lay on the prosecution. PW1 stated that she was born in 2003. PW2 stated that she gave birth to PW1 on 9.6.2003. What better evidence is there to tell the age of a child than the evidence of a mother who gave birth to her? To corroborate this PW5 tender the complainant's birth certificate issued on 14.02.17 indicating that she was born on 09.06.2003... As at the time of the commission of the offense, the complainant was 15 years of age. And therefore find that the persecution proved beyond any reasonable doubt that the complainant was a child aged 15 years.” 36. On the same limb, the learned Judge held that: “ PW1 and PW2 stated that the complainant was aged 15 years at the time of the commission of the offence. PW5 presented the birth certificate showing the complainant was born on https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1468/eng@2026-07-24 5

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9/3/2003. I therefore find and agree with the trial Magistrate that the age of the complainant was proved to have been 15 years at the time of the offence. The victim was therefore a child in the sense of the law.” 37. In Oungo vs Republic [2025] KECA 2280 (KLR), concerning age, this Court stated: “ …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, amongst 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." Similarly, in MW vs Republic [2020] KECA 944 (KLR), this Court referred to the case of Francis Omuroni vs Uganda Court of Appeal Criminal Appeal No. 2 of 2000, where the court held: “ In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense... " 38. Upon analysis of the evidence and the submissions, we find that both the trial magistrate and the learned Judge addressed this issue and made a finding based on the birth certificate produced in evidence, and we have no basis to disturb the finding on age. 39. On penetration, we note that the trial magistrate held as follows: “ I opine that there was proof of penetration characterized by the perforation of the hymeneal membrane and presence of infection as observed by PW6 and also because of PW1's torn garments to wit her skin tight and the torn and muddy panty.” 40. The High Court made similar findings as follows: “ The P3 form, medical chits and the post defilement care form corroborated the evidence of the complainant that there was penetration of her sexual organ. The appellant's averment in ground 4 of his memorandum of appeal that the hymen may have been broken in other circumstances was only raised in this appeal and is not backed by any evidence. There was no indication to this effect when he was cross- examining the prosecution witnesses especially PW1 and PW5. The argument is therefore bare and devoid of substance. I reject it. Accordingly, I find there was penetration of the victim.” 41. This Court in Fappyton Mutuku Ngui vs. Republic [2014] KECA 570 (KLR), cited the case of Mohamed vs. Republic [2006] 2 KLR 138, where the Court restated that the Courts were no longer hamstrung by requirements of corroboration where the victim of a sexual offence was a child of tender years if it was satisfied that the child was truthful. 42. In this case, PW1 gave a clear, detailed, and consistent account of how she was defiled, which was corroborated by the evidence (P3 form), which confirmed a broken hymen, bruises, and infection, consistent with sexual assault. Further, her clothes were torn and muddy, corroborating her narration. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1468/eng@2026-07-24 6

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43. On whether the appellant was positively identified, the trial court found as follows: “ PW1 stated that she was on way back home at around 8:00 p.m. when she saw a person walking from the opposite direction. She shone light on the accused person using the spotlight she was carrying and was able to recognize the accused who was her neighbour. She also recognized him from his verbal pronouncement when he told her that she was at liberty to go wherever she wanted. In my view the perpetrator was ably recognized by PW1 being aided by a torch. Further, the accused person was her neighbor for a period of 7 years. There was no error in identification. I am satisfied that the complainant was truthful and that the minor gave an honest and accurate account of what transpired. Her testimony was corroborated by the prosecution witnesses.” 44. The learned Judge held: “ The main contentious issue is whether the appellant was the perpetrator of the offence. The evidence of the prosecution witnesses was consistent. PW1 clearly identified the appellant herein. At the time PW1 had a flashlight and knew the accused person well for they had lived as neighbours for the last seven years. PW 1 met PW 3 immediately after the offence and confirmed to him that she had been defiled by the appellant. The evidence of the prosecution witnesses linked the appellant to the offence. Clinical examination confirmed the penetration.” 45. In Wamunga vs Republic [1989] KECA 47 (KLR), this Court stated that evidence of visual identification must be examined with great care, where it stated: “ It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction. Recognition may be more reliable than identification of a stranger…” In Reuben Taabu Anjononi & 2 Others vs. Republic [1980] KECA 23 (KLR), it was held that recognition of a known person is more reliable than identification of a stranger. 46. According to the record, PW1 knew the appellant as a neighbour for over seven (7) years; she used a spotlight to see him clearly; she also recognised his voice and, at the earliest opportunity, named him to her mother, PW2, in the presence of PW3. We agree with the finding of the two courts below that this was a case of recognition, not mere identification, of a stranger. The appellant was a person PW1 knew well, and apart from seeing his face, she knew and recognised his voice. We find no basis to interfere with that finding. 47. Both the trial court and the High Court considered the defence and rejected it. In Stephen Nguli Mulili vs Republic [2014] KECA 408 (KLR), this Court stated that a trial court must consider the defence but is entitled to reject it if it does not raise reasonable doubt. The Court held that: “ From the facts on record it appears that the prosecution made a strong and watertight case against the appellant. The evidence of the prosecution witnesses corroborate each other and form a clear and logical sequence of events establishing the appellant’s guilt. Taking all the facts into consideration, it is our opinion that the alibi defence did not shake the prosecution’s case. The finding of the High Court that the appellant was properly https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1468/eng@2026-07-24 7

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identified and convicted of the offence of defilement was based on overwhelming evidence and cannot be faulted.” 48. On the defence, the trial magistrate held: “ The Accused person's defence that he was framed because of a land case was a mere denial, a sham and cannot stand. There was no evidence of an existing land case as no pleadings or proceedings were produced by the accused person. Furthermore, the Accused did not cross examine PWl and 2 on existence of a land case. His defence was therefore an afterthought and the same is hereby dismissed.” 49. The learned Judge, on his part, had this to say: “ ……I am aware that the appellant claimed the charges were trumped up by PW 2 with who he has a land case and of motor cycle. It is known that some unscrupulous individuals may set up or trump up charges against a person in order to secure collateral advantage or force settlement of a civil claim. However, in this case, other than his averments, nothing tangible was adduced towards that end. I agree with the trial magistrate that the evidence of the appellant came as an afterthought. The same was not raised during cross-examination of the witnesses. The appellant did not produce particulars of the land case. He did not confirm the allegations that the prosecution witnesses were actuated by malice upon him and his brother. I therefore find that the prosecution proved that the appellant was the perpetrator of the offence. The first and the fifth ground of the appeal therefore fails.” 50. Both the trial court and the High Court rejected the defence for being an afterthought. In light of the strong and consistent prosecution evidence, we find that the defence did not raise any reasonable doubt. 51. In the end, we are satisfied that the prosecution proved its case beyond reasonable doubt. We accordingly find no merit in this appeal and hereby dismiss it in its entirety. The conviction and sentence are hereby upheld. DATED AND DELIVERED AT NYERI THIS 24TH DAY OF JULY, 2026. W. KARANJA ......................................... JUDGE OF APPEAL S. ole KANTAI ......................................... JUDGE OF APPEAL ALI-ARONI ......................................... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1468/eng@2026-07-24 8

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