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JudgmentDICKSON KARIUKI MBITI VS The Republic9 min read

DICKSON KARIUKI MBITI VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. S.K. Ngii (P.M) in the Magistrate’s Court at Siakago Criminal Case No. MCSO E016 of 2022 delivered on 4th October, 2023)


  1. This is an appeal against the judgment of Hon. Stephen K. Ngii in Criminal case number E016 of 2022 delivered on the 4th October, 2023. The appellant was charged and convicted for the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act no. 3 of 2006. The particulars of the offence were that on diverse dates of 10th June and 11th June, 2022 in Gikiiro area of Mbeere South Sub- County, within Embu County, intentionally and unlawfully caused his penis to penetrate the vagina of Ann, a child aged 13 years.  He also faced an alternative charge of committing an indecent Act with a child contrary to section 11 (1) of the Sexual Offences Act number 3 of 2006.

The particulars being that; on diverse dates of 10th June and 11th June, 2022 in Gikiiro area in Mbeere South Sub-County, within Embu County, intentionally and unlawfully touched the vagina of Ann a child aged 13 years with his penis.

  1. The case proceeded to full hearing and the appellant was convicted and sentenced to 20 years imprisonment and being dissatisfied with the conviction and the sentence, the appellant filed the petition of appeal dated 28th December, 2023 challenging the decision of the trial court. He put forth the following grounds of appeal.
  2. The Learned Magistrate erred in Law and in fact by convicting on insufficient and contradictory evidence.
  3. The Learned Magistrate erred in Law and in fact by failing to consider the appellant’s defence.
  4. The Learned Magistrate erred in Law and in fact by imposing a harsh and excessive sentence.
  5. He prayed that the appeal be allowed and the conviction be quashed and the   sentence be set aside.
  6. In the appeal herein, the court gave directions on filing of submissions but only the appellant complied with the directions.
  7. In his submissions, the appellant stated that the case against him was not proved beyond reasonable doubt. He alleged that the case was a frame up by the complainant’s family.  That the complainant was not consistent in her evidence and the same was contradictory, yet, the trial court convicted him on such evidence.  He took issue with the evidence of PW7, the clinical officer who examined the complainant and the evidence that he adduced in court. He questioned why PW7 did not observe any visible injuries on the complainant yet she was examined only half a day after the alleged incident. He further submitted that there was no evidence that was adduced to link him with the spermatozoa that was seen on the genitalia of the complainant as no DNA test was done.
  8. The duty of the first appellant court was explained in the case of Okeno Vs Republic (1972) EA 32 where it was held that:

“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Vs. R (1957) EA. 336 and to the appellant court’s decision on the evidence.

  1. The first appellate court must itself weigh the conflicting evidence and draw its own conclusion (Shatilal M. Ruwala Vs. Republic (1957) EA 570. 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. It must make its own findings and draw its own conclusion only then can it decide whether the Magistrate’s finding 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.
  2. The appellant herein was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual offences Act and an alternative charge of committing an indecent Act with a child contrary to section 11 (1) of the Sexual offences Act number 3 of 2006.
  3. The elements of the offence of defilement are:
      1. The age of the complainant - that she was a child.
      2. There was penetration as defined under section 2(1) of the Sexual Offences Act.
      3. The identification of the perpetrator.

On the issue of age, the offence of defilement, different from any other sexual offences is an offence against a child.

A child under the sexual offences Act is an individual under the age of 18 years.

The sexual offences act identifies categories of children based on age when indicating the penalties for the offence of defilement. This, therefore, goes to show the importance of establishing the age of the child when convicting and sentencing a person found guilty of defilement. The court of appeal in the case of Hadson Ali Mwachongo Vs. Republic emphasized this when it stated.

“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”

  1. The certificate of birth of the complainant was produced as exhibit -1. It shows the date of birth as 30th November, 2008. This shows that at the time the incident happened she was 14 years old and, therefore, a child and that was sufficient proof of the complainant’s age.
  2. On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as

“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the same is proved by the victim’s evidence and medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt -see the case of Bassita Vs. Uganda S.C Criminal, Appeal number 35 of 1995 which was cited locally with approval in the case of Mohammed Omar Mohammed Vs. Republic (2020) eKLR.

  1. In the case herein, the complainant testified through an intermediary, as she is mentally challenged, as evidenced by the registration card by the National Council for persons with disability which was produced and marked as exhibit -2. PW1, Ann Rose Nyawira Ngari, the mother to the complainant and the intermediary testified that on the 11/6/2022 she had gone to the market to sell miraa and on returning home she found the complainant missing. She went to the complainant’s grandmother’s home from where she was informed that the mother to the accused person wanted to see her (PW1).

The accused person’s mother told her to examine what had been done to her child (the complainant). She spoke to the complainant who told her that she had been penetrated with a penis in her vagina. The complainant further told her that she had been defiled by the appellant twice.

  1. On her part the complainant who testified as PW2, stated that the appellant removed her pant, undressed her in the thicket and fell her down and proceeded to do a bad thing on her. She stated that the appellant did it on her stomach on the front part and she pointed between her legs. Her evidence was corroborated by that of PW7, the clinician at Runyenjes Level (4) Hospital who examined her on the 11/6/2022 with a history of having been sexually abused. He stated that on examining her genitalia it showed vagina discharge missing vaginal hymen but she did not have any visible injuries. That the laboratory tests conducted showed presence of pus cells and spermatozoa. He filled the P3 and PRC forms for him which were produced as exhibits.
  2. On the identification of the perpetrator, the evidence of PW1 and PW2 was to the effect that the appellant is a person well known to her.

Indeed, he is an uncle to the complainant. Further his own mother testified as PW4.

In her evidence she stated that on the 11th June, 2022 she sent the complainant to buy some staff at around 7.00 am but she came back crying and was mentioning Mbiti the appellant herein. She asked her what was wrong and she showed her the skirt that she was wearing and it was wet on the back. She examined her private parts and it had whitish substance and she is the one who alerted the mother to the complainant. It was her testimony   that the complainant told her that Mbiti had done something bad to her. She explained how Mbiti got hold of her and dragged her into a thicket and did “bad things” to her. She also told her that Mbiti had done to her the same thing the previous day. The evidence of PW4 corroborated that of PW7 when the complainant went back to PW4’s home, she had been defiled and according to PW4, the clothes were wet and she told her it was the appellant who had defiled her. It is not therefore true as alleged by the appellant that the evidence of PW2 was not corroborated and that it was insufficient.

  1. The final issue is whether the sentence imposed on the appellant is harsh and excessive. The principles upon which a court can interfere with sentence imposed by a trial court were discussed in the case of Robert Mutungi Muumbi Vs. Republic (2015) eKLR where the court of appeal cited with approval the case of Bernard Kimani Gacheru Vs. Republic CR App no. 188 of 2000 (Nakuru) where it was held;

“It is now settled Law that 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, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with 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 are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matters already started is shown to exist.

  1. The court requires to consider whether the sentence is manifestly excessive, whether the court overlooked some material factor or took into account some wrong material and cited on the wrong principles. The fact that sentence is excessive is not sufficient on its own as a basis for reducing the sentence. In the present case, the complainant was 14 years old. Section 8 (3) of the Sexual Offences Act provides:

“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of less than “twenty years”

  1. The sentence of twenty years imprisonment is the minimum provided for under the Law leaving the trial court with no discretion. This observation was made by the learned Magistrate at the time of passing the sentence.

The Supreme court in the case of R. Vs. Mwangi; initiative for strategic litigation in Africa (Isla) and 3 others (Amicus Curiae) Petition E018/2023 (2024) KESC 34 (KLR) stated that as long as the sentences prescribed under section 8 of the Sexual Offences Act remain undisturbed constitutionally sound, the mandatory sentences ought to be applied as prescribed. It stated;

“66” we must 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 the statute, must be based not only on evidence and some legal principles but on an in depth. Consideration of public interest and the principles of public Law informed the meaning 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”)

  1. Bearing this in mind, I find that the sentence that was imposed by the trial court is not to be disturbed by this court as the same is based on sound legal principle.
  2. For the foregoing reasons, the appeal herein lacks merit.
  3. It is so ordered.

Delivered, dated and signed at Embu this 28th day of August, 2024.


    DICKSON KARIUKI MBITI VS The Republic DICKSON KARIUKI MBITI VS The Republic