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JudgmentAGGREY OLIMBO MUTAKHE VS The Republic10 min read

AGGREY OLIMBO MUTAKHE VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of HonS. Ouko, SRM in the Magistrate’s Court at Runyenjes Sexual Offence Case No. E015 of 2023 delivered on 15th January 2023)


  1. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read together with section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars are that on 10th August 2023 at Kavangua village within Embu East subcounty in Embu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of K.R., a child aged 12 years. He faced the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, whose particulars are that on 10th August 2023 at Kavangua village within Embu East subcounty in Embu County, the appellant intentionally touched the vagina of K.R. a child aged 12 years with his penis.
  2. At the trial, the appellant pleaded ‘not guilty’ to the charge and after the full hearing, he was convicted and sentenced to 20 years imprisonment.
  3. The appellant, being dissatisfied with the decision of the trial court, filed a petition of appeal dated 09th February 2024 seeking the following orders:
    1. This appeal be allowed;
    2. The conviction be quashed and sentence be set aside; and
    3. The appellant be set at liberty.
  4. The appeal is premised on the grounds that the learned trial magistrate erred in both law and fact:
    1. By failing to consider the multiple contradictions in the prosecution’s case;
    2. By failing to observe that the evidence adduced by the prosecution was insufficient to support an excessive sentence of 20 years imprisonment;
    3. By failing to consider that the sentence meted out to the appellant is harsh, excessive and unconstitutional as it contravenes Articles 25 and 50 of the Constitution; and
    4. By rejecting the appellant’s plausible defense without giving cogent reasons.
  5. At the trial, PW1 was the victim who gave sworn evidence following voire dire. She stated that on the day of the incident, she was going to pick a book from her friend at around 1PM when the appellant accosted her on the road and pulled her into a maize farm, through which he led her to his one roomed house. That the appellant, who was not known to her, tied her hands, legs and mouth, undressed her and had sexual intercourse with her. That when his wife found her in the house, she beat her up and when she was released, she ran back to her grandmother’s place and told her of the incident. That the chief was also informed and she was taken to the hospital. On cross-examination, she stated that even though she did not know the appellant before the incident, she saw him and was able to identify him. That he did not tie her up when he met her on the road but he took her to his house which was about 10KM away.
  6. PW2 was Charles Kibe Irungu, the area chief. He stated that on the material day, he was on his way from work when he passed by the home where the appellant was working and he saw a group of women shouting. They were saying that they had rescued a girl from the appellant’s house where the appellant had defiled her. He stated that he went to the home of the victim’s grandparents and informed them before arresting the appellant who was found at his home. On cross-examination, he stated that it was the appellant’s wife who raised alarm about the incident after finding him in the act. That the victim also stated that the appellant was in the house at the time of the incident.
  7. PW3 was BWN, the victim’s mother, who stated that her daughter was born on the 24/11/2010 in 2010 and she produced her birth certificate as evidence. It was her testimony that on the day of the incident, she was called and informed that her daughter had been found with a boy. That she went to Nthagaiya where her sister brought the victim and they took her to Runyenjes Hospital. That she recorded her statement and the victim told her that she met the appellant when she was on her way to borrow a book.
  8. PW4 was Anne Githinji, a clinical officer at Runyenjes Level 4 Hospital. She stated that she examined the victim and found that she had a laceration on the posterior vaginal wall and a vaginal discharge. That urine tests showed presence of blood and there were no spermatozoa cells found in the urine sample. That the hymen was torn. She produced P3 and PRC forms as evidence.
  9. PW5 was PC Boniface Mumbua of Nthagaiya Police post. He stated that at around 7PM on the day of the incident, the victim’s parents reported the incident. That after about 20 minutes, PW2 and members of the public brought the appellant at the station on suspicion of the defilement. It was his testimony that the appellant admitted to using his fingers to penetrate the victim and he stayed with her for 2 hours in the house. That he established the age of the victim and stated that when he interrogated her, she stated that the appellant tied her up with a handkerchief as he perpetrated the offence. On cross-examination, he stated that he visited the scene at 8PM on the same day and he found the appellant’s wife removing his things from the house.
  10. At the close of the prosecution’s case, the trial court put the appellant to his defense. He gave unsworn evidence as DW1 stating that he saw the victim with some other children playing and she was lying on the ground crying. That when he went to inquire, the other children told him that the victim had been caught with a boy. That he separated them and when he tried to reprimand the victim, she was prideful and so he beat her with slippers on her shoulder.
  11. It was his testimony that the victim then went on to talk to a group of women and he did not think much of it. That he went home and when he was sitting with his wife, PW2 and the girl’s father went to his house and arrested him on allegations of defilement. That he did not resist arrest and they took him to the police station then to hospital. That the police officer who took him asked for Kshs.50,000/= so that he could withdraw the case but he told him that he did not have the money and so he was arraigned and charged.
  12. The trial court considered the evidence adduced and found that the elements of the offence of defilement had been proved beyond reasonable doubt and the appellant was convicted. He was sentenced to 20 years imprisonment, being the minimum sentence prescribed under section 8(3) of the Sexual Offences Act.
  13. This appeal was canvassed by way of written submissions.
  14. It was the appellant’s submission that the prosecution had not proved the case against him beyond reasonable doubt. That the court failed to consider his defense and convicted him on weak evidence. He argued that the charge sheet was defective and that he was held in custody for 4 days before being arraigned, hence there was enough time for the police to frame him for the offence. That there was no DNA evidence to prove that he was indeed the perpetrator of the offence. He urged the court to allow the appeal.
  15. On its part, the respondent relied on the cases of MTG v. Republic (2022) eKLR and Philip Nzaka Watu v. Republic (2016) eKLR and argued that the prosecution’s evidence was not marred with inconsistencies which should affect the case materially. It stated that the charge sheet was not defective and relied on the case of Benard Ombuna v. Republic (2019) eKLR where the court laid down the elements of a fatally defective charge sheet. The respondent, also relied on the provisions of section 2 and 8(1)&(3) of the Sexual Offences Act and stated that the prosecution proved all the elements of the offence beyond reasonable doubt. Further reliance was placed on the cases of Hadson Ali Mwachongo v. Republic (2016) eKLR, Mwangi v Republic (2022) eKLR, Aloyo Ewoi v. Republic (2016) eKLR and EE v Republic (2016) eKLR. It was its argument that the finding of the trial court on sentence is sound as the sentence imposed is prescribed by the law. It urged the court to dismiss the appeal.
  16. The issues for determination are as follows:
    1. Whether the offence was proved beyond reasonable doubt; and
    2. Whether the sentence meted out to the appellant is harsh and excessive.
  17. The appeal herein is to be determined through reevaluation of the evidence adduced before the trial court. In the case of Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus:

“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence.  The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”

  1. As to whether the offence was proved beyond reasonable doubt, section 8(1) and (3) of the sexual Offences Act provides the elements of the offence as follows:
    1. The age of the complainant- that the complainant was a child;
    2. Penetration as defined under section 2(1) of the Sexual Offences Act happened to the child;
    3. The perpetrator was positively identified.
  2. The age of the victim herein was determined through her birth certificate produced as evidence and it shows that she was born in the year 2010 in November. As at the time of the incident, she was 12 years and 8 months old. This is sufficient proof of the complainant’s age. In the case of Alfayo Gombe Okello v. Republic Cr App No 203 of 2009 (Kisumu), the court stated as follows;

“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).”

  1. The element of penetration was proved through the testimony of PW1 which corroborated that of PW4. PW1 stated that the appellant pulled her from the road and led her to his house through a maize plantation. That when they arrived, he tied her up and then took off her clothes before inserting his penis into her vagina. She stated that it happened twice within the same afternoon before the appellant’s wife found her in the house, beat her and chased her away. PW4 stated that upon examining the victim, she found that the hymen was broken and there were lacerations and bleeding in the vagina. This is sufficient proof of penetration. 
  2. On the identity of the assailant, PW1 stated that the appellant is not known to her but she saw him when he was defiling her since he did not cover her eyes. Even though none of the other witnesses saw the appellant actually committing the offence, the proviso at section 124 of the Evidence Act provides that the testimony of the victim in a sexual offence is sufficient to identify the assailant and no corroboration is needed to that effect. It states:

“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

In my view, the appellant was properly identified as the assailant.

  1. The appellant argued that the trial court did not consider his defense. From the judgment of the trial court, the trial magistrate gave her reason for disregarding the defense stating that the same is a ploy to confuse the court since there was overwhelming evidence against the appellant who was positively identified as the assailant. I do agree with the trial magistrate on this reasoning since the appellant’s evidence in his defense failed to displace the prosecution’s evidence.
  2. The final issue is whether sentence meted out to the appellant is excessive in the circumstances. The sentence is prescribed under section 8(3) of the Sexual Offences Act and the court applied it as is. The supreme court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) stated that for as long as the sentences prescribed under section 8 of the Sexual Offences Act remain constitutionally sound, the mandatory sentences ought to be applied as prescribed. It stated:

“[66] We must also reaffirm 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 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 specific 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.”

Bearing this in mind, I find that the sentence imposed by the trial court is lawful and need not be disturbed by the court.

  1. For the foregoing reasons, I find that the appeal herein lacks merit and the same is hereby dismissed.
  2. It is so ordered.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    AGGREY OLIMBO MUTAKHE VS The Republic AGGREY OLIMBO MUTAKHE VS The Republic