Njuguna v Republic

that the appellant then applied a substance on his buttocks and then penetrated him with his penis. He further testied that the appellant was known to him before that day and that on the material day, he was accompanied by the person who sells bananas to his mother. 5. The complainant’s mother, who testied as PW2, arrived home at about 7.30 P.M. and found PW1 lying on the couch in evident pain. When she asked him to go and take a bath, PW1 broke down in tears, causing her considerable concern. After persistent coaxing, interrogation, and inquiries, it emerged that PW1 was experiencing pain in his rear. PW1, however, was initially too embarrassed to speak to his mother. He eventually conded in Salome, his aunt, and disclosed what had transpired. 6. Upon receiving that information, PW2 took the complainant to Nairobi Women’s Hospital for examination and thereafter reported the matter at Karuri Police Station. PW3, PC Grace Opiyo, P/ No. 79530, a police ocer attached to that station, testied that PW2 indeed lodged the complaint and that the case was assigned to her. She stated that she escorted PW1 and PW2 to Karuri Sub-District Hospital, where PW1 was examined by Caroline Ndemi (PW4), a clinical ocer. PW4 conducted a medical examination and noted tenderness in the complainant’s anal region, forming the opinion that penetration had occurred. She subsequently produced the P3 form. 7. Placed on his defence, the appellant denied deling the complainant. He stated that on the material day he was at work when, at about 3.00 pm, a man from his village called him. Upon approaching the man, he was arrested by him and two others and escorted to the hospital, where he was compelled to undergo certain tests. He further testied that at the hospital he met PW2, whom he claimed not to have known before. However, he later asserted that PW2 had longstanding issues with him dating back to 2010 and was framing him. 8. The trial court disbelieved the appellant’s narrative and convicted him. 9. The appellant preferred the rst appeal on both the conviction and sentence. After hearing the appeal, the learned Judge found that the learned Magistrate considered all the relevant factors and had not acted on any wrong principles. On sentence, the Judge found that the term imposed was mandatory and therefore left it undisturbed. 10. Dissatised with the High Court’s nding, the appellant is now before us, faulting the learned Judge for: 11. i. Not appreciating that the critical elements of delement were not proved to the required standards in law; ii. Upholding the conviction in reliance on a charge that was not proved; iii. Upholding the conviction and arming the mandatory sentence which has been declared unconstitutional; iv. Upholding the conviction without proper nding that the mandatory sentence deprives the trial court and judges of the legitimate powers of discretion given to them by Sections 216 and 329 of the CPC; v. Upholding the conviction, yet the prosecution had failed to prove their case beyond reasonable doubt. When this appeal came up for hearing, the appellant appeared virtually in person from Nanyuki Main Prison, while Ms. Proscovia Vitsengwa, learned Prosecution Counsel, represented the respondent. The parties opted to rely on their respective written submissions, which were already on record at the time. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1709/eng@2026-09-25 2

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12. Through his submissions, the appellant argued that the elements of the oence of delement were not proved. His contention in urging this submission was hinged on the grounds that the complainant’s evidence did not prove penile penetration, that the medical report produced was ambiguous in that it concluded that there was tenderness of the anal region and did not corroborate that there was penile penetration; on identication, the appellant contends that PW1’s evidence did not identify him as the perpetrator; further, that no identication parade was conducted, nor was the appellant identied in one. 13. The appellant further contended that he was not aorded a fair trial due to the fact that he was not provided with witness statements by the prosecution before the hearing. Arising from the foregoing assertions, the appellant argued that his rights under Article 50(2) of the Constitution were trampled upon. 14. Ms. Vitsengwa opposed the appeal through the submissions dated 10th March, 2026. She urged that the ingredients necessary to prove the oence of delement, that is, age, identication and penetration, were proved beyond reasonable doubt. Regarding the sentence, Ms. Vitsengwa relied on the Supreme Court holding in Republic vs. Mwangi; Initiative for Strategic Litigation in [2024] KESC 34 (KLR) in urging us not to interfere with the sentence as it was legal. In the end, counsel for the respondent urged us to dismiss the appeal in its entirety. 15. This being a second appeal, our jurisdiction ows from section 361 (1) of the Criminal Procedure Code, and by virtue of the provision, our focus is on matters of law and not facts. Our interference with factual conclusions is only warranted where the courts below considered irrelevant facts, neglected relevant ones, or outrightly erred in the analysis of the evidence. This jurisdiction has been reiterated in several decisions of this Court, including Dzombo Mataza vs. Republic [2014] KECA 831 (KLR), where it was held that: “As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put dierently, in a second appeal such as this one, matters of fact are for the trial court and the rst appellate court – see Okeno vs. Republic (1972) E.A. 32. By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters of fact that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong. We do not discern such misgivings in this appeal.” 16. We are also aware that, this being a second appeal, we must limit our determination to issues that were raised before the rst appellate court. This principle of law was reiterated by the Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (supra), and we are bound to comply. 17. With that in mind, we have reviewed the record and appreciated the tone and signicance of the submissions and authorities of the parties. We note that the question of infringement of the right to a fair trial was not raised before the rst appellate court. The issue is therefore not available for our determination in this appeal. It therefore follows that what arises for our determination is whether the oence of delement was proved and the question of the constitutionality of the sentence. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1709/eng@2026-09-25 3

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18. 19. As to whether the oence of delement was established, the appellant was convicted and sentenced under section 8 (1) as read with section 8 (2) of the Sexual Offences Act which provides as follows: A person who commits an act which causes penetration with a child is guilty of an oence termed delement. (2) A person who commits an oence of delement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” The main ingredients of the oence of delement are proof that the victim is a minor; that there was penetration of the victim’s genital organs with the genital organs of another person; and that the accused person was the person who penetrated the victim’s genital organs. For the purpose of the penalty under section 8 (2) 20. “ (1) of the Sexual Offences Act, there must be proof that the age of the victim was eleven years or below. The rst element of delement is the question of age. The Court in Peter vs. Republic [2024] KECA 1124 (KLR) outlined the applicable principles of proof of age as follows: “ 28. From the foregoing, it remains settled that the age of the victim can be proved not only by way of documentary evidence such as a birth certicate, baptism card or an age assessment report, but also by way of oral evidence of the child who is considered suciently intelligent or even the evidence of the parents or guardians. 30. There cannot be any better way to prove the age of PW1 than by the Birth Certicate, which is an ocial document issued by the Registrar of Births. The appellant did not challenge the authenticity of the Birth Certicate. To this end, we will not belabour much but conclude that PW1’s age was proved beyond reasonable doubt.” 21. We fully associate ourselves with the above holding. In this appeal, we note that during voir dire examination, PW1 stated that he was 7 years old as at the time of the hearing. PW2, in her evidence, produced a baptismal certicate which showed that the minor was born on 10th February 2008 and was 6 years old at the material time. Both the charge sheet and the P3 form indicate that the child was 6 years old at the time of the oence. All the evidence on record conclusively proves that the minor was below 11 years old as at the time of the crime. Section 8(2) of the Sexual Offences Act simply required the prosecution to establish that the victim was below 11 years, which it did. We therefore nd that the complainant’s age was proved to the required standard. 22. On the question of proof of penetration, the appellant asserts that penile penetration was not proved beyond reasonable doubt by the prosecution. In our view, it is clear from the record that the complainant’s testimony provided proof of penetration. The complainant gave a clear, consistent, and detailed account of the delement. He testied that the appellant lured him near some trees, instructed him to remove his trousers, applied a substance to his buttocks, and thereafter he felt something penetrate his anus, causing him pain. 23. Further, PW2, the complainant’s mother, observed him that evening after the incident and noted that he was in discomfort, and upon interrogation he informed Salome, his aunt, about what had happened. PW2’s evidence provided immediate corroboration of the complainant’s account. Further https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1709/eng@2026-09-25 4

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corroboration was supplied by the clinical ocer (PW4), who examined the complainant and found tenderness in the anal region. PW4 concluded that penetration had occurred. Under section 2 of the Sexual Oences Act, penetration is dened broadly to include “the partial or complete insertion of the genital organ of a person into the genital organ of another person.” PW1’s evidence that the appellant sexually assaulted him, and that he felt pain, was consistent with that of PW4, the clinical ocer who attended to him and, on examination, noted that there was tenderness of the anus. PW4 lled the P3 form, which conrmed that there was tenderness of the anus, which was consistent with penetration. The trial court found his testimony to be cogent and consistent, as was corroborated by the medical reports. There was, therefore, sucient credible evidence that penetration had taken place. 24. The appellant, in his submissions, argued that the fact that the complainant testied that he went to continue playing after the incident raises suspicions as to whether the complainant was actually deled. The mere fact that the child went to play soon after the incident does not negate the evidence of penetration. The evidence tendered by the respondent’s witnesses consistently pointed to penile anal penetration of the minor in the stated period, and both the trial court and the High Court were justied in reaching the conclusions they did in that regard. 25. Regarding the identity of the oender, courts place signicant emphasis on proper oender identication in criminal cases, recognizing it as a crucial element for a fair trial and accurate conviction. The evidence on record demonstrates that the appellant was a person well known to the complainant. After the incident, the complainant identied the appellant to his aunt, Salome, and to PW2, his mother. His account was consistent and unwavering. When he testied in court, he pointed out the appellant as the person who assaulted him. He further stated that on the material day, the appellant was in the company of the man who sells bananas to his mother, another individual familiar to him. These circumstances leave no doubt that the complainant recognized the appellant; this was therefore a case of recognition, not identication of a stranger. 26. The appellant argued that no identication parade was conducted. That complaint is misplaced. An identication parade is ordinarily necessary where the suspect is unknown to the witness or where the prevailing conditions at the time of the oence were so dicult that the witness’s ability to identify the assailant may have been compromised. The purpose of such a parade is to eliminate the possibility of error arising from eeting encounters, poor lighting, or confusion, by providing a controlled environment in which the witness can pick out the oender. 27. In the present case, none of those concerns arise. The complainant knew the appellant before the incident, interacted with him at close range, and immediately named him to PW2 and to Salome. His recognition was prompt, consistent, and untainted by any suggestion of confusion or mistaken identity. The law is settled that recognition is generally more reliable than identication of a stranger, and where the assailant is known to the victim, an identication parade is unnecessary. The complainant’s recognition of the appellant was clear, credible, and sucient to rmly place him at the scene of the oence. 28. In support of the foregoing proposition, we refer to the pronouncements by this Court in Longole & another vs. Republic (Criminal Appeal 5 of 2016) [2024] KECA 483 (KLR) (9 May 2024) (Judgment) which cited with approval the decision in Rotich Kipsongo vs. Republic [2008] eKLR, where the Court held that: “ This Court had occasion to deal with the issue of identication by recognition in several cases, one of them being Kenga Chea Thoya vs. Republic Criminal Appeal No. 375 of 2006 (Unreported) where it said, “On our own re-evaluation of the evidence, we nd this to be a straightforward case in which the appellant was recognized by the witness (PW1) who https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1709/eng@2026-09-25 5

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knew him. This was clearly a case of recognition rather than identication, and as it has been observed severally by this Court, recognition is more satisfactory, more assuring, and more reliable than identication of a stranger – see Anjononi vs. Republic [1980] KLR 59.” 29. Similarly, in Waingwe vs. Republic (Criminal Appeal 142 of 2016) [2023] KECA 401 (KLR) (31 March 2023) (Judgment), this Court held that: “ It is commonplace that recognition of an assailant is more satisfactory, more assuring, and more reliable than the identication of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 30. We are satised that there was no mistake as to the identity of the appellant and he was properly found guilty of the oence with which he was charged. 31. The appellant’s defence that he was framed by PW2 because they had longstanding issues did not dislodge the prosecution evidence. Therefore, the inevitable conclusion we arrive at is that the oence of delement was proved beyond reasonable doubt. We are satised that the identication was proper; thus, this element was also established to the required standard. Our own evaluation of the record leads us to the irresistible nding that the ingredients of the oence of delement were established to the required standard, and the concurrent ndings of the two courts below were based on credible and cogent evidence. In light of the overwhelming evidence that was adduced against the appellant, his denial of having been involved in the commission of the oence was properly rejected and did not result in shifting the burden of proof upon him. Ultimately, we detect no error or irrational application of the law or legal principles by the learned Judge. 32. Turning to sentence, the appellant was charged with the oence of delement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act which provides: “ 8(1) A person who commits an act which causes penetration with a child is guilty of an oence termed delement. (2) A person who commits an oence of delement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 33. The appellant was sentenced to life imprisonment as provided by the law. He, however, faults the trial court and the rst appellate court for imposing a mandatory minimum sentence which is unconstitutional. 34. Sentencing is a discretionary exercise by the trial court. An appellate court will not necessarily interfere with the sentence meted out unless it is demonstrated that the trial court acted on some wrong principles or overlooked some material facts. This Court in Bernard Kimani Gacheru vs. Republic [2002] eKLR stated thus: “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, a sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with a sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1709/eng@2026-09-25 6

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are not sucient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist.” 35. The Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (supra), stated regarding minimum sentences prescribed by section 8 of the Sexual Offences Act that: “66. We must also rearm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in the Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specic law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suce to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed….”. 36. Our ndings hereinabove eectively lead us to the conclusion that the sentence imposed by the trial court against the appellant and armed by the rst appellate court is sound in law. 37. Ultimately, the appellant has not established any grounds upon which the Court can interfere with his sentence. We, therefore, nd that the appeal lacks merit and is dismissed in its entirety. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. W. KORIR JUDGE OF APPEAL ..................................... L. M. NDOLO JUDGE OF APPEAL ..................................... A. I. HASSAN JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1709/eng@2026-09-25 7

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