Mutemi v Republic

Mbuyu tree, and another time when she was collecting re wood. She did not disclose this relationship to anyone at the time. 4. PW1 further stated that the Appellant later sent a message to Dere informing him that she was pregnant, and that he was responsible. On 23rd August 2020, Dere went to the complainant’s home and informed her mother, PW2, that his worker had impregnated her daughter. PW2 took the complainant to Genesis Hospital where the pregnancy was conrmed. The complainant identied the Appellant as the person responsible for the pregnancy. The matter was subsequently reported at Hindi Police Station on 24th August 2020. PW2 produced the complainant’s Birth Certicate in court. 5. Edwin Chege PW3 a clinical ocer at Mokowe Hospital testied on behalf of Gerald Njagi, the clinical ocer who examined PW1. The report indicated that there was white discharge in her vagina, and that she was pregnant. 6. After the complainant was conrmed to be pregnant, PW4, the Investigating Ocer, sought to arrest the Appellant, who they were informed had travelled upcountry. He was subsequently arrested on 17th September 2020 by a Kenya Police Reservist and taken to Kibaoni Police Station. According to PW4, the Appellant admitted that he had deled the complainant, stating that he had been given permission to marry her after she nished school. 7. Mwididi Omar, PW5, a Government Analyst at Mombasa Chemist, conducted a DNA test after PW1 gave birth to a male child named NK from DNA samples taken from the Appellant, PW1, and the child. PW5 testied that the results showed a 99.9% probability that the Appellant was the biological father of the child. 8. When placed on his defence, the Appellant gave unsworn testimony and called his father, DW2, as a witness. He stated that he was 22 years old and a Form Three student at [Particulars withheld] Secondary School; and that, during the COVID-19 school closure, he sought employment and went to work at the homestead of Mzee Dere Mahidu Abdala, an area elder. He claimed that Dere wanted him to convert to Islam and encouraged him to marry a girl from the village. He alleged that he was introduced to PW1, who represented herself to him as an 18 year old, having completed class Eight and attending a hairdressing course. He further stated that a customary marriage process under the Giriama custom was undertaken, which included the presentation of a ring, necklace, goats, and payment of Kanjama, and that his parents were informed and had participated in the process. The Appellant, stated that he later left the area after securing employment elsewhere and that, upon his return, he was arrested following allegations that he had married an underage girl. 9. The Appellant’s father, who testied as DW2, supported this narrative, stating that the complainant’s parents had informed them that she was 18 years old and that Kanjama amounting to Kshs 20,000 was paid. He claimed that the arrest of the Appellant followed disputes involving Dere and demands for money. 10. After evaluating the evidence, the trial court found that the prosecution had proved the charge of delement beyond reasonable doubt. The court held that the age of the complainant had been conclusively established through documentary evidence; that penetration had been proved through the complainant’s testimony and corroborated by medical and DNA evidence; and that the defence raised by the Appellant was not credible. The Appellant was accordingly convicted and sentenced to serve 20 years’ imprisonment, being the minimum sentence prescribed by law. 11. Dissatised with both the conviction and sentence, the Appellant appealed to the High Court. He argued that the 20 years sentence imposed on him was unlawful and unconstitutional under Articles 27 and 50 of the Constitution, and that his defence had not been properly considered by the trial court. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1727/eng@2026-09-25 2

page 2 of 7

Upon re-evaluating the entire record, the High Court upheld both the conviction and sentence, and dismissed the appeal in its entirety. 12. Aggrieved by the decision of the High Court, the Appellant has led an appeal to this Court on the grounds: that the rst appellate court failed to properly appreciate and evaluate his defence, which he maintains was cogent, plausible, and credible; that the rst appellate court failed to adequately consider that the prosecution’s case was riddled with contradictions and inconsistencies, which, in his view, undermined the reliability of the evidence tendered; that the rst appellate court failed to appreciate that circumstantial evidence that was relied upon was insucient to sustain a conviction; and that he was subjected to a mandatory sentence without due regard to mitigating factors or the circumstances of the case. 13. The Appellant led written submissions. When the appeal came up for hearing on a virtual platform, the Appellant appeared in person, while learned prosecution counsel, Mr. Omariba, appeared for the Respondent. 14. In his submissions, the Appellant challenged both his conviction and sentence. It was submitted in principal that the courts below failed to properly consider his defence under Section 8(5) of the Sexual Oences Act, namely that he reasonably believed the complainant was over 18 years of age after she allegedly represented herself as an adult. He contended that once this defence was raised, the burden remained on the prosecution to disprove it, and that the trial court and the High Court failed to take additional steps to ascertain the complainant's age. 15. The Appellant further argued that the mandatory minimum sentence of twenty years' imprisonment prescribed under Section 8(3) was unlawful as it fettered judicial discretion by preventing courts from considering the peculiar circumstances of each case, including mitigation and the oender's personal circumstances; that mandatory minimum sentences reduced courts to mere implementers of legislative policy and are inconsistent with constitutional principles of dignity, fairness, separation of powers, and judicial independence. In support of this argument, he relied on the Supreme Court decision in Muruatetu & Another vs Republic; Katiba Institute & 4 Others (Amicus Curiae) [2021] KESC 31 (KLR). The Appellant also submitted that he was a rst oender whose mitigation and personal circumstances were not adequately considered. He maintained that the sentence imposed was harsh and excessive in the circumstances and urged this Court to interfere therewith. 16. In their written submissions, learned prosecution counsel submitted that this appeal, being a second appeal, is strictly conned to matters of law only by virtue of Section 361 of the Criminal Procedure Code. 17. Counsel submitted that it is settled law that an appellate court will not interfere with a sentence unless it is demonstrated that the sentencing court acted on a wrong principle, overlooked a material factor, took into account an irrelevant consideration, or imposed a sentence that is illegal or manifestly excessive. In support of this position, reliance was placed on the case of Bernard Kimani Gacheru vs Republic [2002] eKLR, where the Court held that sentencing is a matter of judicial discretion, and that appellate interference is limited to cases where there is an error in principle. Counsel contends that no such error has been demonstrated in the present appeal. 18. On the issue of minimum sentences under the Sexual Oences Act, counsel submitted that, although the Supreme Court decision in Francis Karioko Muruatetu vs Republic (supra) introduced limited sentencing discretion to murder cases, it did not invalidate statutory minimum sentences under the Sexual Oences Act. In further support of this position, counsel relied on Dismas Wafula Kilwake vs Republic [2019] eKLR where it was armed that, while sentencing remains a discretionary function, such discretion must be exercised within the statutory framework, and does not entitle a court to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1727/eng@2026-09-25 3

page 3 of 7

disregard minimum sentences without lawful justication. Counsel submitted that, in the present case, the sentence imposed fell squarely within the statutory limits specied under Section 8 of the Sexual Oences Act and that, therefore, it was lawful. 19. Counsel further submitted that the trial court properly considered all relevant factors, including the age of the minor, the gravity of the oence, and the need for deterrence, before imposing the sentence. It is argued that the High Court, sitting as the rst appellate court, duly re-evaluated the record and correctly concluded that the sentence was neither illegal nor excessive, and that no misdirection occurred. We were urged to uphold the conviction and sentence imposed by the trial court and armed by the High Court. 20. This is a second appeal where the mandate of this Court by virtue of Section 361 (1)(a) of the Criminal Procedure Code is limited to consideration of issues of law only. This position has been variously restated by this Court in many decisions. In the case of David Njoroge Macharia vs Republic [2011] eKLR the Court stated: “ As this Court has stated many times before, it will not normally interfere with concurrent ndings of fact by the two courts below unless such ndings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the ndings - see Chemagong vs. R [1984] KLR 611.” 21. 22. Having considered the appeal, the rival submissions, the authorities cited and the law, the main issues that fall for our determination are: i. Whether the ingredients of the oence of delement were proved beyond reasonable doubt, particularly whether the evidence relied upon was sucient in law to sustain the appellant's conviction. ii. Whether the evidence on record disclosed material contradictions or inconsistencies of such magnitude as to render the conviction unsafe in law. iii. Whether the appellant successfully established the statutory defence of mistaken belief as to the complainant's age under section 8(5) of the Sexual Oences Act, and whether the High Court erred in rejecting that defence. iv. Whether the sentence of twenty (20) years' imprisonment imposed upon the appellant and upheld by the High Court was lawful and whether this Court may interfere with the exercise of sentencing discretion on a second appeal. As pertains to the question of whether the oence of delement was established, the Appellant was convicted and sentenced under Section 8 (1) as read with Section 8(3) of the Sexual Oences Act which provides as follows: 1. A person who commits an act which causes penetration with a child is guilty of an oence termed delement. (2) … (3) A person who commits an oence of delement with a child between the age of twelve and fteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1727/eng@2026-09-25 4

page 4 of 7

23. In essence, in order to sustain a conviction for the oence of delement, the prosecution was required to prove three essential ingredients, namely: the age of the complainant, proof of penetration, and the identity of the perpetrator. See GMM vs Republic [2019] eKLR. 24. As regards her age, PW1 testied that she was 14 years of age. Her age was proved by the Birth Certicate that was produced showing that she was born on 11th August 2006. See MM vs Republic [2019] eKLR. 25. On penetration, PW1 gave direct evidence that the Appellant had sexual intercourse with her on more than one occasion. Her testimony was corroborated by evidence that she subsequently became pregnant and gave birth to a child. Further corroboration was provided through DNA analysis conducted by the Government Chemist, which established a 99.9% probability that the Appellant was the biological father of the child born to the complainant. Based on this evidence, like the trial court and the High Court, we too are satised that penetration was suciently proved. 26. On the third element, the Appellant’s identication is not in dispute. The Appellant was well known to PW1 before the commission of the oence. 27. The two met on two occasions prior to having sexual relations, and thereafter the relationship continued. Indeed, the Appellant did not dispute having had sexual relations with PW1. The courts below were therefore right in nding that the Appellant was properly identied through recognition, which 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. See Anjononi & Others vs. Republic, [1976-80] 1 KLR 1566, 1568. 28. Notwithstanding the evidence, the Appellant’s principal defence was that he reasonably believed the complainant to be over 18 years of age. He claimed that PW1 represented herself as an adult who had completed Class Eight and was taking a hairdressing course. He further contended that customary marriage arrangements had been undertaken with the knowledge and participation of both families, leading him to believe that PW1 was of marriageable age. 29. The High Court rejected the defence, nding that it had not been raised during the cross-examination of the prosecution witnesses, and only emerged during the defence case. The court further found that the Appellant had failed to demonstrate that he took any reasonable steps to ascertain the complainant’s age. 30. In this respect, Section 8(5) of the Sexual Oences Act provides that: “ It is a defence to a charge under this section if- 31. a. it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the oence; and b. the accused reasonably believed that the child was over the age of eighteen years.” This Court addressed the application of the defence under Section 8 (5) in the case of Eliud Waweru Wambui vs R [2019] eKLR (Nambuye, Musinga, & Kiage JJA) thus: “ We think it a rather curious provision in so far as it is set in conjunctive as opposed to disjunctive terms which would seem to be more logical as opposed to the current rendition. We would think that once a person has actually been deceived into believing a certain state https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1727/eng@2026-09-25 5

page 5 of 7

of things, it adds little to require that his such belief be reasonably held. Indeed, a reading of subsection (6) seems to add a qualication to subsection (5)(b) that separates it from the belief proceeding from deception in subsection (5)(a). We would therefore opine that the elements constituting the defence should be read disjunctively if the two sub-sections are to make sense.” Section 8(6) in this regard provides as follows: “(6) The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.” 32. And in the case of Mghanga vs Republic (Criminal Appeal 14 of 2019) [2022] KECA 367 (KLR), this Court held: “ We, like the two courts below, cannot nd anything to suggest that PW1 deceived the appellant into believing that she was over the age of eighteen years. He did not state what reasonably made him to believe that PW1 was over the age of eighteen years. In any case, PW1 was categorical that the appellant knew she was a student attending primary school, not to mention that the appellant and PW1 lived only 500 meters away from each other.” 33. In the instant case, the evidence showed that the complainant was a school-going child aged 13 years at the material time. In her evidence, PW1 was categorical that the Appellant knew she was a student attending primary school at the time and that he had promised to marry her when she completed her Class 8. Furthermore, prior to establishing a relationship with PW1, there is nothing that pointed to the Appellant as having taken any precautions to establish her age, whether from her parents, or from independent sources, that would have objectively supported such belief. 34. As such, we nd nothing in the evidence to suggest that PW1 deceived the Appellant into mistakenly believing that she was over the age of 18 years. As did the High Court, we nd that raising the defence was an afterthought. Accordingly, the trial court and the High Court were entitled to conclude that the Appellant’s defence failed to meet the requirements of Section 8(5) of the Sexual Oences Act, and as such, we are satised that such defence was rightly rejected. See Paul Munyoki vs Republic [2021] KECA 919 (KLR). 35. In summary, both the trial court and the High Court having concurrently found that the prosecution had proved all the ingredients of the oence beyond reasonable doubt, we nd that the evidence suciently sustained the conviction for delement, for which we have no diculty in upholding. 36. As concerns the Appellant’s complaint that the evidence on record disclosed material contradictions or inconsistencies, a consideration of the submissions does not show that the Appellant substantiated the discrepancies complained of, as a consequence of which we are not able to address this ground. 37. Turning to the sentence of twenty (20) years’ imprisonment imposed upon the Appellant, it was contended that the mandatory sentence denied the trial court an opportunity to consider his mitigation and the circumstances of the oence. 38. As a second appellate court, our jurisdiction in matters of sentence is limited. This Court will only interfere where it is demonstrated that the sentencing court acted on a wrong principle, failed to consider a relevant factor, took into account an irrelevant consideration, imposed an unlawful sentence, or where the sentence is manifestly excessive in the circumstances. 39. The Appellant was convicted of delement contrary to Section 8(1) as read with Section 8(3) of the Sexual Oences Act. The provision prescribes a sentence of imprisonment for a term of not less https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1727/eng@2026-09-25 6

page 6 of 7

than twenty years where the child is between the ages of twelve and fteen years. The complainant having been thirteen years old at the material time, the sentence imposed by the trial court was as by law prescribed. The High Court considered the Appellant's challenge to the sentence and correctly observed that the Supreme Court's decision in Francis Karioko Muruatetu & Another vs Republic (supra) was expressly conned to the mandatory death sentence for murder and did not invalidate the sentencing provisions under the Sexual Oences Act. The court further found that the sentence imposed was lawful and was neither excessive nor founded on any error of principle. 40. In the circumstances, the sentence imposed was lawful and we have no basis on which to interfere therewith. 41. In the nal analysis, the appeal against both conviction and sentence lacks merit and is hereby dismissed in its entirety. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR …………...…............. JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. …………...…............... JUDGE OF APPEAL JOEL- NGUGI …………...…............... JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1727/eng@2026-09-25 7

page 7 of 7