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JudgmentJACKSON NYAGA WACHIRA VS The Republic16 min read

JACKSON NYAGA WACHIRA VS The Republic

High Court at Embu High Court · · Lucy Njuguna

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(An Appeal from the decision of Hon. J.N Githaiga R.M in Siakago MCSO No. E047 of 2023 Delivered on 31st January, 2024)


  1. The appellant was charged with two counts of defilement and 2 counts of alternative charge of committing indecent act with minors.  In the first count he was charged under section 8(1) as read with 8(2) of the Sexual Offences Act, the particulars being that on the 17/10/2023 at around 2300 hours at Riandu Market in Mbeere North Sub- County within Embu County, he intentionally caused his penis to penetrate the vagina of I.W a child aged 10 years and an alternative charge to it with the same particulars.
  2. In count 2, he was charged under Section 8(1) as read with 8(4) of the sexual offences Act, the particulars being that on the 17/10/2023 at around 2345 hours at Riandu Market in Mbeere North Sub County, in Embu County, he intentionally caused his penis to penetrate the vagina of I.W a child aged 10 years and an alternative count bearing the same particulars.
  3. The matter proceeded to full hearing.  PW1 was John Murogi, a clinical officer who examined the complainants in both counts.  Irene Wanja one of the complainants was in fair condition who told him that she had been threatened that she would be killed if she told anyone what transpired on the morning of 8th October, 2023.  On cross examination, she had foul- smelling vaginal discharge, her hymen was freshly broken and she had some bruises on her labia minora, her urine had pus cells and there was no spermatozoa.  In his conclusion, there was vaginal penetration.
  4. It was also his evidence that he examined Daphine Wambu Fundi who was aged 16 years.  Upon examination, she was in general fair condition but there was vaginal discharge, there were no bruises or lacerations but there was an old perforated hymen. He concluded that there was possibility of recent vaginal penetration as per the history given by the victim. According to him, the complainant was defiled on either the night of 07/10/2023 or the morning of the 08/10/2023.  On cross examination, he stated that he did not fill the PRC forms because they were not available but even then all the necessary information was captured in the P3 form and the treatment records.
  5. One of the complainants Irene Wanja testified as PW2.  She stated that by the time of the incident, she had known the appellant for a short period and it was her first time to see him.  That on the 07/10/2023 one Irene Njeri went to her grandmother’s home at Muchonoke and she was in the company of Teresa, Nyakio and Nkatha.  That Njeri told her that her mother had told her to accompany her to a burial at her grandfather’s home to help her wash utensils at Muchonoke. They went to the said home and after washing the utensils, Njeri told her that they go to Caribbean, in Matangari where they met with Cynthia, Gakii and they took her to Riandu.
  6. That when they were going to Riandu, she was with Irene Njeri and Gakii.  That they met Daphine at Riandu Market.  That Gakii, Njeri and Dalphine went to a club called signature and they told her to stay outside and when they got there they were taking alcohol and were dancing.  She told them she wanted to sleep and Gakii took her to the appellant’s house but they did not find the appellant and she was left in the house alone as the other girls went back to the club.  That the other girls came back at different times of the night and they all slept.
  7. The appellant also came at night, knocked on the door and Gakii opened for him.  That Gakii was sleeping on the lower side of the bed while Njeri and herself were sleeping on the upper part of the bed.  The appellant also slept on the same bed on the side that Gakii was, and while they were sleeping, the appellant did bad things to her.  That the appellant removed her clothes and defiled her and threatened her with death if she ever told anyone.  The appellant was naked and he used a condom and penetrated her through her anus.  She stated that she was able to identify the appellant because when he came to the house, the lights were on and he heard him talk.
  8. That the appellant also defiled Gakii and Dalphine the same night and she saw him defiling them.  That in the morning Dalphine and Gakii left her in the appellant’s house and the appellant took her to Murugi’s house who took her to Kiremba’s mother who called the Police after she told her what happened.  That Dalphine, Gakii and herself were taken to Siakago Police Station and then to Mbeere District Hospital/Siakago Level (4) hospital.  She identified the appellant as her perpetrator.  In cross examination, she stated that they all slept on the same bed and it is the appellant who removed her clothes.  That he defiled the three of them starting with Gakii, Dalphine and herself and threatened them with death if they ever disclosed it to anyone.  That she had not engaged in Sexual intercourse before that date.
  9. PW3 was Dalphine Wambui who stated that she knows the appellant whom she had known before the incident through Gakii.  That Gakii was living with the appellant and she used to live there as well.  That on the 07/102023 in the evening, there was a party at Signature club, Riandu.  She went to Riandu with Gakii and they met Pauline who asked them to take her to her house next to Carribean club, Matangiri.  They took motorcycles and went to carribean where they met Irene Njeri and Irene Wanja outside.  That she entered the club and when she went outside she met Gakii talking to Irene Njeri and Irene Wanja and they proceeded to Riandu as Carribean club was not good leaving Njeri and Wanja outside Carribean.
  10. That when they got to Riandu, they found Irene Wanja and Irene Njeri there and they were outside signature club.  She went to join her boyfriend while Gakii went to talk to Irene Wanja and Irene Njeri.  That her boyfriend bought for her two jugs of keg and Gakii joined them and they took alcohol together.  That when she got totally drank she asked Gakii to take her where she was going to sleep and she told her to go to the appellant’s house.  That she went to the appellant’s house and found Irene Wanja, Scholastica and the appellant. That Schola left to go and look for food after she told her she was hungry and she did not come back and she was left with the appellant and Irene Wanja. 
  11. That when she arrived at the appellant house, PW2 did not have her stockings and innerwear and she entered the bed.  The appellant removed her trousers and innerwear and he had sex with her and that PW2 was in bed when the appellant was defiling her.  That the appellant also defiled Cynthia Gakii but she did not see him when he defiled PW2 but she told her that the appellant had defiled her before she got there.  That the following morning, she went with Gakii to her home and Police officers who were in the company of Gakii’s uncle arrested them.  She was taken to Siakago Level (4) hospital.  She stated that she was born on 5th August, 2009.
  12. PW4 was Njeri Muchangi who stated that on the 7/10/2023 she went to PW2’s home and asked her mother to give her permission to join her since her grandfather had died so as to help her cook tea and wash utensils.  PW2’s mother gave her permission and they went to her grandfather’s home where they found the utensils had been cleaned and they cooked tea.  She asked PW2 to take her to carribean, Matangari, to look for a job at the hotel, but the same was closed.  They met with Gakii and PW3 who told them there was a party at a club in Riandu and that they should go.  They boarded a motorcycle and went to signature club where the party was.  They entered the club and they took PW2 to a certain house which Gakii claimed to be her rented house.  They left  her sleeping there and they went back to Signature club promising that she would pick her the following morning.
  13. That when she went to check PW2 the following morning, she found two ladies who asked her what she wanted and she told them that she was looking for a child with school uniform and she was told that PW2 had left with the appellant who was the owner of the rent premises and she was surprised as that was contrary to what she had been told by Gakii that she is the one who had rented the house.  That on her way home, she met with the appellant who asked her if she knew PW2 and he requested her to clean the clothes that PW2 was wearing but she refused.  But he did not tell her what he had done to PW2.  That after sometime the police came and asked her if she was the one with PW2, and upon the confirmation, they were taken to Siakago Police Station and then to Siakago Hospital.  I heard that PW3 and other girls had been defiled by the appellant.
  14. PW5 was Wincate Karimi the mother to PW2 who stated that her daughter was born on the 20/06/2013 and produced a copy of her birth certificate.  She stated that on 07/10/2023 she was at home when PW4 went home and told her that her grandfather had died and sought for permission for PW2 to accompany her so that they could clean utensils at her grandfather’s house.  She went to pick Miraa and when she came back she did not find PW2 and PW4 and she sent Penina to go and look for them. That she was told by her grandmother that she had not seen them. They cooked dinner and slept. That the following morning she went to the police station and reported and she was told to wait for them as police officers had gone to pick them up.
  15. That they were brought by police officers. She recorded her statement and left them at the police station and went back home.  That the following day she talked to PW2 at the police station who told her that she went with PW4 and that she was defiled by the appellant together with some other five (5) girls including PW3.  That she removed PW2’s clothes and she confirmed that she had sustained injuries on her vagina.
  16. PW6 was Jennifer Wangai who stated that on the 08/10/2023 at around 9.00 she was in her house when a lady called Grace called her and told her that she was new in the area and that there was a child who had been brought to her by the appellant.  That the child was requesting to be taken home and she did not have bus fare and she had not eaten. That she went for the child whom she found lying on the floor and she gave her 2 cakes and tea to eat as she said she had not eaten the previous day and that her name was Wanja.
  17. That she called the elder by name Kanyenji who called the Chief of Muchonoke who in turn called the police who went and took the child and went to Siakago Police Station with the officers and in the police vehicle were some other two girls whom Grace said were the ones who were with PW2.  That PW2 told her that she had slept in the appellant’s house but was not comfortable talking about it.
  18. PW7 was Cynthia Gakii.  She stated that on the 07/10/2023 some two girls namely Wanja and Njeri found her at Carribean bar at around 8.00 p.m. They told her that they had come to listen to music and dance. She told them that the music was at Riandu.  Wanja and Njeri left before her and she followed them.  That her and Pauline went to silent bar and they were with their boyfriends Wachira and Arnold.  They took keg at the said bar and then went to signature bar to dance.
  19. That Njeri told her that Wanja was sleepy and she took her to the appellant’s house where she used to live with the appellant, Dalphine, Schola and Wawira.  She left Wanja with Schola and went back to the bar.  That Dalphine left the bar before her and went to the appellant’s house and arrived there before her.  That when she got to the appellant’s house, she woke up Wanja and Dalphine to squeeze some space for her.  They slept until the following morning when she went home in the company of Dalphine.  That Njeri came for Wanja and they went to another plot next to Riandu which was where Murugi’s house was. Later D.C.I officers went to their home and she was taken to Siakago Police Station and later to Siakago Level (4) hospital and she was told that the accused had defiled Wanja.
  20. Pw8 was Cpl. Peter Chepkwony who was the investigating officer.  He was instructed by his boss to follow up a case that had been reported at Muchonoke Police Post by one Wincate Karimi that her 10 year old daughter by the name Irene Wanja had not reported back home from the 07/10/2023 and that she had received information that she had been seen at Riandu.  That after a few minutes they received information that a lady by name Jennifer Wangai had two minors in her home and she suspected that they had been defiled. He immediately organized to visit the area and he was accompanied by his colleagues and on arrival at Jenniffer’s they found 2 minors namely Irene Wanja who was in school uniform and the other one was Irene Njeri.
  21. That Irene Wanja looked uncomfortable while sitting down and upon interrogation, she told them that she had spent the previous night at the appellant’s house.  They interrogated members of the public around the area and they told them that they had spotted 4 young girls at the appellant’s house and they were given their names as Cynthia, Gakii and Dalphine Wambui.  They traced the accused person and arrested him and upon carrying out a search in his house, they found an exercise book which he was using as his diary and upon perusal of some pages they found a recent update which confirmed that the girls were in his house the previous night.
  22. They escorted the 4 minors to Siakago Police Station and they were booked as children in need of care and protection and the accused was also booked in.  That upon examination by the doctor, two of the minors namely Irene Wanja and Dalphine Wambui were found to have been defiled.  That from the investigations, the appellant has a home about 300 meters from Riandu which he uses for these heinous acts.  They charged him with the offences that he was tried for.
  23. On cross examination, he stated that the appellant was arrested at his father’s home and one of the minors had been rescued from his house while others had gone back to their homes.  That upon inquiry, the minors informed them that they had spent the night at the appellant’s home and that he had defiled some of them.  That the following day the appellant escorted Irene Wanja to Murugi’s house who then took the minor to Jennifer’s house who reported the incident. That they relied on the information from the doctor who confirmed that the minors were defiled and the appellant was the only man in the house.  That there were no sperms deposit found as the witnesses stated that the appellant used a condom.
  24. When the appellant was placed on his defence, he stated that on the 07/10/2023 he got late to get to the house and he had not locked his house.  That when he got to his house at 2300 hrs, he found a minor and woke her up and asked her how she got to his house and she told him.  As he went to look for Wanja and Cynthia, he met Grace who is her neighbor and they went together to his house and they woke up the minor and asked her her name.  They met Cynthia Gakii and asked her why she left a strange minor in his house and she asked him to allow the minor to sleep and told him that she would go back to her on Sunday.
  25. He told her that he would not stay with her alone and they accompanied him to the house and they went and slept with Cynthia, Gakii, Irene Njeri, and Dalphine Wambui.  That the following day he left Pauline in the house and took the minor to Grace’s house for breakfast since all the minors had left his house.  That he was later arrested and escorted to Siakago Police station and later to Siakago District Hospital as he had been assaulted by Police Officers.
  26. The appellant was convicted and sentenced to serve 40 years imprisonment in Count I and 15 years in Count II and both sentences were ordered to run concurrently.
  27. The appellant filed the petition of appeal on the 12th September, 2024 praying that the appeal be allowed, the conviction be quashed and the sentence of 55 years be set aside. The following are the grounds of appeal;
  28. The learned magistrate erred in law and in fact by convicting the appellant against the weight of evidence. 
  29. The learned magistrate erred in law and in fact by failing to consider that the medical report did not connect the appellant to the offence.
  30. The learned magistrate erred in law and in fact by violating the appellant’s rights and freedoms from discrimination as enshrined under Article 28 (1) (2) of the constitution.
  31. The appeal was disposed of by way of written submissions which this court has duly considered.
  32. The appellant was charged with the offence of defilement contrary to section 8 of the sexual offences act No.3 of 2006.  The elements of the said offence are:
  33. Age of the victim that she was a minor
  34. Penetration occurred
  35. Identification of the perpetrator
  36. On the age of the victims, a child is defined in the Children’s Act as any human being under the age of eighteen years.  The importance of proof of age was buttressed in the Court of appeal case of Hadson Ali Mwachongo Vs. R (2016) eKLR where it was held;

“The importance of proving age of the 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.”

The two complainants birth certificates were produced in evidence which shows that PW2 was born on the 20/06/2013 and therefore, her age was 10 years and 3 months when the incident occurred.  On the other hand, PW3’s birth certificate shows that she was born on 05/08/2009 and she was 14 years and 2 months.  It is therefore clear that the ages of the victims were proven.

  1. On whether the penetration occurred, section 2 of the Sexual offences Act define penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another.  Penetration can be proved by either the medical evidence and also by oral evidence of the complainant.  See the case of AML Vs. Republic (2012) eKLR.  The two complainants explained in details how the appellant defiled them in his house.  Their evidence was corroborated by the evidence of the clinical officer who testified as PW1.  He examined Irene Wanja on the 09/10/2023 and found that there was vaginal penetration as evidenced by freshly broken hymen and the bruised labia minora.  He also examined Dalphine Wambui Fundi and he concluded that there was a possibility of recent vaginal penetration as per the history given by the victim. That according to him, Irene Wanja was defiled on either the night of the 07/10/2023 or the morning of 08/10/2023.
  2. On the identification of the perpetrator, the evidence on record shows that PW3 was familiar with the appellant since she had lived on his house in Riandu.  On the part of PW2, she spent the night in the appellant’s house.  The following day the appellant took PW2 to his neighbours house for breakfast and in the circumstances, she was able to identify him with certainty and there was no chance of mistaken identity.
  3. On whether the sentence was harsh and excessive, the appellant was convicted under section 8(1) (2) and 8 (1) (4) of the Sexual Offences Act which stipulates a minimum mandatory sentence of life imprisonment. In the first Count he was sentenced to serve 40 years which was lenient considering the mandatory sentence under the Act.  In Count 2, he was sentenced to serve the mandatory minimum of 15 years.  Sentencing is at the discretion of the trial court and an appellate Court will only interfere with a sentence if there was an error in principle or if the sentence was excessive and disproportionate.  In this case it was not and I find no reason to interfere with the sentence that was imposed by the trial Court.
  4. In the end, I find the appeal has no merit and I hereby dismiss the same.
  5. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    JACKSON NYAGA WACHIRA VS The Republic JACKSON NYAGA WACHIRA VS The Republic