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JudgmentELIJAH KIOKO MULI VS The Republic12 min read

ELIJAH KIOKO MULI VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. Njoki Kahara, SRM in the Magistrate’s Court at Siakago Sexual Offence No. 64 of 2021 delivered on 29th January 2024)


  1. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read together with 8(4) of the Sexual Offences Act No. 3 of 2006. Particulars are that on diverse dates between August 2021 and November 2021 at Muthithu village, Makima location in Mbeere South sublocation within Embu County, the appellant intentionally and unlawfully inserted his penis into the vagina of GNK, a child aged 17 years. 
  2. He faced the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006, whose particulars are that on diverse dated between August 2021 and November 2021 at Muthithu village, Makima location in Mbeere South sublocation within Embu county, the appellant intentionally and unlawfully touched the vagina of GNK, a child aged 17 years. 
  3. At the trial, the appellant pleaded ‘not guilty’ to the charge. The matter proceeded to full hearing and subsequently he was convicted and sentenced to 15 years imprisonment.
  4. The appellant, being dissatisfied with the decision of the trial court, filed a petition of appeal dated 7th February, 2024 seeking the following orders:
    1. That this honourable court be pleased to allow the appeal;
    2. The conviction be quashed and the sentence of 15 years imprisonment be set aside; and
    3. The appellant be set at liberty.
  5. The appeal is premised on the grounds that the learned trial magistrate erred in both law and fact:
    1. By convicting the appellant on charges that were not proved beyond reasonable doubt;
    2. By failing to note that PW1 was not a credible witness;
    3. By failing to make findings that the complainant and the appellant are almost the same age;
    4. By failing to consider that the sentence meted out against the appellant was harsh and excessive; and
    5. By rejecting the appellant’s defense without giving cogent reasons. 
  6. A summary of the evidence adduced at the trial is as follows: PW1 was GNK, the victim, who stated that the appellant went to her home severally to ask her to be his girlfriend and eventually she accepted. That she had just completed her primary school national examinations and when she joined secondary school, she began visiting the appellant’s home during school hours without her parent’s knowledge. That between August 2021 and October 2021, she had sex with the appellant 6 times before her father found out. That she used to go to the appellant’s house often and on 29th November 2021, she went and they had sex and stayed until 3PM when they heard a knock on the door.
  7. When they opened, it was her father and uncle who tied the appellant with a rope and they called the police. She stated that she was taken to Kiritiri Health Center where she was examined and treated and she had the treatment records. She produced her birth certificate showing that she was 17 years old at the time of the offence. On cross-examination, she stated that the appellant never forced her into having sex with him. That on the day they were found at his house, she had gone there before he arrived at home and she was not in school uniform. That the appellant did not know that she was a student and when he had approached her to be his girlfriend, she told him that she was 18 years old. That when the appellant asked to see her national ID, she said that she did not have it but she told him she was 18 years old.
  8. PW2 was AKJ, the victim’s father. He stated that his daughter was born in 2004 and that she was in form 2. That he started getting information that the victim was not attending school and he noticed that her brother was arriving at home earlier than her. That he decided to investigate the cause of her lateness and when he called the school in November 2021, the teachers said that she had not gone to school that day. He stated that he informed his brother and a Nyumba Kumi elder and together they went to Muthithu market where the appellant was found inside his house with the victim.
  9. That they called the police and the 2 were arrested and they recorded their statements. That the victim was taken to Kiritiri Health center where she was examined and a P3 and PRC form were filled. On cross-examination, he stated that when his daughter was found at the appellant’s home, she was not wearing her school uniform.  That the victim and her brother used to leave home for school at 5:30AM daily and they would return at 5PM but the victim never explained her lateness. That it is not true that the appellant was helping the victim with school work. He denied having threatened the appellant because of some differences he had with his parents.
  10. PW3 was Sgt. Pius Kibos the investigating officer who stated that PW2 called to inform him that his daughter had been found in the appellant’s house. That he visited the scene with his colleague and they found the victim inside the house with the appellant and her school uniform and books were there. That they escorted the minor and the appellant to Bondeni Police Station and PW2 gave them the minor’s birth certificate through which they ascertained her age. The victim was taken to Kiritiri Health center for examination and the appellant was detained and charged with defilement.
  11. PW4 was Harriet Muthoni Ireri who produced the medical examination report authored by Jacinta Nyaga who examined the victim at Kiritiri Health Center. She indicated that the victim’s hymen was not freshly broken and that the other parts of her genitals looks normal and did not have bruises. That all the laboratory tests were normal but she had an infection.
  12. At the close of the prosecution’s case, the trial court put the appellant to his defense.
  13. DW1, the appellant, stated that PW2 and his father had an argument regarding land and PW2 warned that he would do something to the appellant such that his parents would never see him again. It followed that he was arrested and charged for defiling the victim herein.
  14. 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 15 years imprisonment, being the minimum sentence prescribed under section 8(4) of the Sexual Offences Act.
  15. This appeal was canvassed by way of written submissions.
  16. It was the appellant’s submission that the testimony of PW1 was contradictory and that it should not be held as credible. That from the onset, PW1 made him to believe that she was over the age of 18 and she did not want the appellant to know that she was a student. That he proceeded to relate with the victim as though she was an adult as he had made him to believe. He submitted that even after his conviction and sentence, the victim visits him in prison and she brings him personal effects. That their initial plan before he was arrested was that they should get married to each other. He stated that the sentence imposed on him was harsh and excessive in the circumstances and he relied on the case of Martin Charo v. Republic (Criminal Appeal 32 of 2015) [2016] KEHC 5619 (KLR). He urged the court to allow the appeal. 
  17. The respondent, in its submissions, relied on the provisions of section 2 and 8(1)&(4) of the Sexual Offences Act and stated that the prosecution proved all the elements of the offence beyond reasonable doubt. On the element of penetration, it relied on the cases of EE v. Republic (2015) eKLR and Bassita Hussein v. Uganda, Supreme Court criminal appeal No. 35 of 1995. It stated that the victim’s birth certificate proves that she was 17 years old at the time of the incident and it relied on the case of Hadson Ali Mwachongo v. Republic (2016) eKLR. That the prosecution witnesses placed the appellant at the scene and PW1 identified him as her assailant. That the appellant was safely convicted and the sentence imposed upon him was not harsh or excessive. It urged the court to dismiss the appeal.
  18. 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.
  19. 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 victim’s age was ascertained through her birth certificate which indicated that she was born in 2004 meaning that as at the time of the incident, she was 17 years 8 months old. Within the meaning of a child as provided in the children Act, the victim was a minor. This is sufficient proof of the complainant’s age. In the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that:

“... 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, among 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.”

  1. The element of penetration was proved through the testimony of PW4 which corroborates that of PW1, the victim. PW1 testified that she had sex with the appellant 6 times before her father found out. PW4 stated that the victim’s hymen was not freshly broken but it was missing. This is sufficient proof of penetration.
  2. On the element of identity of the assailant, PW2 stated that the appellant is known to her and he had pursued her asking her to be his girlfriend. That at first, she refused but later on she accepted. In her testimony, she stated that the appellant did not force her to have sex with her and that she used to go to his house often during school hours. On cross examination, she stated that when the appellant approached her, he asked her how old she was and she lied to him that she was 18 years old. She stated that he asked to see her national ID but she told him that she did not have one.
  3. There is no doubt that the appellant and the victim engaged in sexual activity. The victim having been a minor at the time of the offence, did not have capacity to give consent for sexual activity. However, she made the appellant to believe that she was 18 years old at the time of the incident. Section 8(5)&(6) of the Sexual Offences Act provides:

“It is a defence to a charge under this section if-

(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 offence; and

(b) the accused reasonably believed that the child was over the age of eighteen years.

(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.”

  1. PW1 stated that the appellant asked her age before he asked her to be his girlfriend. According to this provision, it is not enough that the victim made the appellant to believe that she was old enough to consent to sex. Rather, it matters more that the victim took steps to ascertain that the victim was indeed an adult. In this case, the victim stated that the appellant asked to see her national ID but she told him she did not have it. On re-examination, she stated that she told the appellant that she was 18 years old when he approached her. at the time of the offence, she was 17 years and 8 months but she misled the appellant to believe that she was 18 years old, 4 months older than she actually was which in my view was a small difference in age for which the appellant should not be punished for and for which he could not have easily detected unlike if the gap was much bigger in which case one would reasonably be expected to be suspicious of the complainant’s age.  For that alone, this court is prepared to give the appellant the benefit of doubt.
  2. In my view, this is a valid defense in light of Section 8(5)&(6) of the Sexual Offences Act. In finding as such, I take guidance from the Court of Appeal’s decision in the case of Wambui v. Republic [2019] KECA 906 (KLR) where the court stated thus regarding the defense under section 8(5)&(6) of the Sexual Offences Act:

“Subsection (5) states that it is a defense to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. 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 of things, it adds little to require that his such belief be reasonably held. Indeed, a reading of subsection (6) seems to add a qualification 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. We think also that it stands to reason that a person is more likely to be deceived into believing that a child is over the age of 18 years if the said child is in the age bracket of 16 to 18 years old, and that the closer to 18 years the child is, the more likely the deception, and the more likely the belief that he or she is over the age of 18 years.”

  1. That being said, I find that the trial court’s conviction was unsafe and it should be overturned. Consequently, the issue of the sentence is immaterial given the fact that the appeal is successful.
  2. In the end, I find that the appeal has merit and the same is hereby allowed. The trial court’s findings on conviction and sentence are hereby set aside. The appellant is to be set free forthwith unless he is otherwise lawfully held.
  3. It is so ordered.

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


    ELIJAH KIOKO MULI VS The Republic ELIJAH KIOKO MULI VS The Republic