INFORMATION
1. In the consolidated charge sheet ;
The Appellant herein James Njuguna Kuria was charged in count one with the offence defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006.
Particulars being that on diverse dates between December 2014 and 7th January 2015 at Bondeni area in Kajiado North Sub-county within Kajiado County the accused person unlawfully and intentionally caused his penis to penetrate the anus of PWM a child aged 11 years.
2. In the alternative the accused person was charged with the offence of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act.
It was alleged that on diverse dates between December 2014 and 7th January 2015 at Bondeni area in Kajiado North Sub-county within Kajiado County the accused person unlawfully and intentionally touched the anus of MNM a child aged 11 years with his penis.
3. The Appellant herein James Njuguna Kuria was charged in count one with the offence defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006.
Particulars being that on diverse dates between December 2014 and 7th January 2015 at Bondeni area in Kajiado North Sub-county within Kajiado County the accused person unlawfully and intentionally caused his penis to penetrate the vagina of MNM a child aged 14 years.
4. In the alternative the accused person was charged with the offence of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act.
It was alleged that on diverse dates between December 2014 and 7th January 2015 at Bondeni area in Kajiado North Sub-county within Kajiado County the accused person unlawfully and intentionally touched the vagina of MNM a child aged 14 years with his penis.
PETITION OF APPEAL
5. The Appellant herein being aggrieved by the entire
decision of Hon. C. M. Njagi Principal Magistrate's judgment delivered on 8 th August 2023 appealed against the decision on the following grounds:-
1. The Trial Magistrate erred in law and fact in convicting the Appellant despite the fact that essential witnesses were not called by the prosecution
2. The Trial Magistrate erred in law and fact in convicting the Appellant irrespective of the fact that there was no medical evidence linking the Appellant to the offence for which he was convicted.
3. The Trial Magistrate erred in law and fact by convicting the Appellant while relying on the evidence only of the minors’ contrary to Section 124 of the Evidence Act.
4. The Trial Magistrate erred in law and fact and grossly misdirected herself by convicting the Appellant for the offence of defilement in the absence of clear evidence as to the age of the complainant.
5. The Trial Magistrate erred in law and fact and misdirected herself by drawing the wrong inferences to the prejudice of the Appellant.
6. That the findings of the fact by the Learned Trial Magistrate regarding the Appellant's mental condition were based on a misapprehension of the evidence and especially the casual approach undertaken by the Learned Trial Magistrate to the medical evidence on record.
7. In the premises the finding and holding of the Learned Trial Magistrate as contained in her judgment is inconsiderate, erroneous, unlawful, biased and untenable in law.
8. The Trial Magistrate erred in law in failing to take into account the Defense put forward by the Appellant and his witness, in shifting the burden of proof to the Appellant and in failing to find for the appellant on parallel evidence.
9. That the Learned Magistrate erred in law and fact by deciding, the case against the weight of evidence and on a balance of probabilities as opposed to beyond reasonable doubt, thus exceeding and misapplying the Courts jurisdiction.
10. That the Learned Trial Magistrate erred in law and fact in finding and holding that the Respondent had proved its case beyond requisite standards, whilst the evidence tendered by the prosecution was replete with pertinent and material contradictions which negated the probative value of the evidence tendered and/or offered.
11. That the Learned Trial Magistrate erred in fact and law
when she failed to find and hold that the essential elements of the offences were not proved.
12. That the sentence meted out by the Trial Magistrate is manifestly excessive, harsh or punitive.
TRIAL COURT EVIDENCE
TRIAL COURT PROCEEDINGS
The Trial Court started hearing it was by Hon. J. B. Nyagena PM on 22/5/2015 and she heard PW1 & PW2. On 13/8/2019 Hon. C. Muthoni PM read to the Accused person Section 200 CPC proceeded with PW3 to the end of proceedings & delivered Judgment.
1. PW1 Peter Wambua a minor of 11 years after voire dire examination the Trial Court took sworn statement of the child. PW1 testified that James Njuguna invited him and his friends namely Ndungu and Kiarie to his house.
On reaching the house they found Pastor Njuguna and his wife who welcomed them. They ate supper and slept in one of the bedrooms. In the morning the wife went to work and the pastor called him to his bedroom and locked the door. He tied his eyes using a piece of cloth and inserted his penis into his mouth. He threatened him not to tell anyone. He told him that the penis was oil from God. He feared and never told his mother. They remained indoors and they used to wash utensils and clean the house.
2. When they were about to open school Pastor called him to his bedroom and asked him to remove all his clothes and he applied oil on his buttocks and inserted his penis into his anus. He did this severally and told him that it was "Agano kutoka kwa Mungu’’ and he asked him to sit on the bed; when he cried he hit him on the head. After he finished defiling him he asked him to go and a bath and after that he sat in the sitting room.He went and came back later and defiled him.
3. On different days he took Kiarie to his bedroom and did the same to him,the next day he took Ndungu and defiled him.. He used to cover their eyes using pieces of cloth told them that; that was the blood of Jesus getting into them and cleansing all the diseases they had. When they were about to leave he told them not to tell anyone. His mother knew, they had gone to visit their Pastor. They used to go to church with Njuguna and then back to his home.
4. They used to live with Mutua, Maina and Ndungu. Those were members of their church. He asked Maina to take them to church and from church everybody went home. He said that those things happened in December 2014. He developed a lot of fear. He went for him again and he defiled him. He asked him to suck his penis at night and rape him during the day. He also said that his sister Njeri was also defiled by Pastor Njuguna when she took church drums to church. When he used to suck his penis, he used to tell him to swallow the sperms but he did not. His sister Njeri alerted their mother what had happened the mother questioned him and then she took them to Karen Hospital and later Nairobi Women Hospital.
5. In cross examination he stated that the Accused used to defile them during the day when the wife was away at work or at night when the wife delayed to come home. The 1 st day he went to his house he inserted his penis to his mouth and asked him to swallow the things he released into his mouth. He was walking with a lot of difficulties due to pain. He feared to tell his wife. He said that they went to Karen Hospital once and blood sample was taken from his sister. They were referred to Nairobi Women Hospital.
6. PW2 Catherine Ndungu Wambua stated that she resided in Ngong doing casual jobs and also sold vegetables. She stated that PWI was her 3 rd born child and he was 11 years old and attended school at Garden of Hope school. Mary Njeri Maina, was her child of 14 years old. She attended school at Ngong Township Primary school in class 8. She produced their birth certificates PMF1 I and PMF1 2 . She was told by Mary Njeri Maina that where it had reached she wanted to take ‘rat rat’ poison which is normally used to kill rats. She asked her why and she said they had made a covenant with Pastor. It had happened when they were in company with other children. She explained further that oil was applied in their private parts.
7. After Church Pastor [accused] asked them to carry drum and Bibles to his house. She took her to Karen Hospital and then referred to Nairobi Women Hospital where she was found to be pregnant. She produced the treatment notes from Nairobi Women Hospital. PMFI 3(a) and Ultra sound form PMFI 3(b) and post rape case form PMFI 4. She reported to the Police in Ngong and Pastor was arrested. She was also treated at Karen Health Centre PMFI 5. Mary told her to interrogate Maina and Maina told her what the pastor used to do to him. He inserted the "agano" to PW1's anus. This ‘agano’ was his penis. He also said that he would ask him to suck his penis claiming that that it was oil from God.
8. She took him Karen Hospital and then to Nairobi Women Hospital where he was treated he had a wound on his anus. She produced treatment noted from Karen PMF16. This is post care form from Nairobi Women Hospital PMF17. She takes him monthly for checkups.
9. On cross examination she stated that she suspected Mary was pregnant. In March she took her to Ololua Health she was examined by the Doctor and when she was interrogated she mentioned Pastor James Njuguna sent them to take drums and bible the store and then he came and applied oil on her vagina then inserted his penis. Mary got a baby boy.
10. PW3 - Dr. Joseph Maundu from Nairobi Police Surgery testified that on 16/3/2015 he examined Mary Njeri Maina a 14 years old referred from Ngong Police Station on allegation that she was defiled on July 2014 by a person known to her. After examination she was found to be about 32 weeks pregnant. She had been examined earlier in Nairobi Women’s Hospital. He signed the P3 Form on 16/3/15 and he produced it as an exhibit.
11. He was also presented with Peter Wambua Maina 11 years old alleged to have been defiled in December 2014 by a person known to him. When he examined him he found several scratch marks around the anal opening. He had been treated at Nairobi Women Hospital and Karen. He signed the documents on 16/3/15 and it in evidence MF1 8.
12. On cross examination he stated that Mary was 32 weeks pregnant clinically. The offence took place in July 2014 and he examined her on 1/3/15. She was almost due to delivery.
13. PW4 Mary Njeri Maina said that she was 19 years old. In the year 2014 she was 14 years old and she recalled in July 2014 she was invited by her friend Ciku to their church called First Born of the Holy Spirit Church. Then Pastor was James Njuguna Kuria. After the service ended the Pastor said the youth to remain behind for dance she remained with Casty, Njoki and three boys Maina, Mutua and Kamwana
14. The pastor told them to take the drums to the store which was a distance from the church. The store had a division using a curtain and there was a bed and stools. In the divided room we were six of us and the pastor. He told the girls to go to one room. They said the prayer on the bed, Castor, Njoki and her then he asked them to remove their clothes. He said he wanted to build a covenant in them. He took the oil and applied it on his penis. He said he “anataka kupanga agano ndani yetu” (He wanted to build a promise in us.). He had sex with all the three girls Casty, Njoki and Mary.
15. He threatened them not to tell anyone at home as they should respect their elders. They respected him as a pastor.
16. She said that Pastor sodomized the boys and defiled the girls. He also instructed Maina to have sex with them. She also said that pastor defiled her at their home when he went there and found her alone.
She stated that she started feeling unwell and her mother suspected her to be pregnant and when pregnant test was done the results were positive. She delivered in May 2015. A DNA test was done twice as the pastor had denied being responsible but both tests showed that pastor was the father of the child.
17. On cross examination she stated that pastor could put loud music when he was defiling her so that no one could hear even if she raised an alarm. She also stated that Pastor defiled them inside the church for the second time.
18. PW 5 Henry Kiptoo Sang of Government Chemist dealing with DNA analysis to determine genetic relationships testified that on 15/9/2015 he received/obtained buccal swab analysis samples from the following
(i) Mary Njeri who was said to be complainant in this case.
(ii) Christian Nduo who was said to be a child.
(iii) James Njuguna Kuria the accused person.
19. Accompanying them was an exhibit memo Form requesting them to determine the paternity of the child Christian Nduo.
Based on the DNA profiles he was able to find out that half of the DNA elements that were found on the child Christian Nduo came from the complainant Mary Njeri while the other half originated from James Njuguna Kuria the accused person. He did a probability of paternity and it showed there are 99.99% chances that James Njuguna was the biological father to Christian Nduo, Mary Njeri’s child. He produced the Analysis Report as exhibit in Court.
20. PW6 - John Njuguna a clinician from Nairobi Women Hospital stated that MNM was attended by her colleague Jeff Njoroge a Clinician who no longer works at the hospital but they worked together in the department for more than three years. He said that MNM was attended in the facility on 5/3/2015. She reported to have been defiled in June and December 2014. The patient was diagnosed with UTI and she was pregnant. She produced a PRC Form filed on 5/3/2015 and treatments notes from Karen Health Centre where she was treated and given referral to their facility.
21. On cross examination he said that the victim was pregnant and the offence occurred twice in June and December 2014. She gave reports of going to the Pastors house and the pastor defiled her.
22. PW7 No. 44173 Cpl Francis Kandie testified that the matter was handed over to him by PC Namusasi who resigned from the service. He stated that the accused person was charged with the offence of defiling two minors but he denied after a DNA report was done. The DNA were for the suspect, the victim and the child.. The Court ordered another DNA to be done after application by the accused. He witnessed the DNA sampling of 2 nd test. The outcome of the 2 nd DNA analysis was the same as the 1 st one which was positive that it belonged to the complainant, the accused and the child.
23. DW1 on his defense he said that he was a Pastor in First Born of the Holy Spirit Ministry and he was also employed in Fruit of Zion Sacco Society Limited. He knew the Complainant M.N.M PW1as an employee of Fruit Zion Saccos as a tea girl.
24. In his statement he stated that he knew the mother to PW1 whom he claimed to be his lover. He stated that he was mentally ill and had been receiving treatment which kept him from being violent. No medical documents were produced to support the issue of being mentally ill.
25. On cross examination he said that he understood the charges he was facing, charges of defilement. He claimed that mother to PW1 employed her to be cooking tea for the Pastors. He confirmed to have defiled Mary Njeri and the child she sired was his. PW1 was 15years old.
26. DW2 Grace Wanjiru testified that the accused person was her last born. She could not say much about his behavior apart from him being a church person. She said that the accused was a bad child in class and when he was seven years old he was expelled from school because of beating children and teachers. In the year 2005 she received a call from the police station that her son was detained in the station because of defiling someone's child. He locked himself in his house and lit his house on fire. He wanted to kill himself in the house. People rescued him. She took him to Mathare Hospital where he was admitted for 2 months. I took him if he did not take medication he was violent.
APPELLANTS WRITTEN SUBMISSIONS.
1. The Appellant relies on the case of Irene Atieno Ochieng v Republic [2017] eKLR where the court stated that:
"As this is the Appellant's first appeal, the role of this appellate Court of first instance is well settled. It was held in the case of Okeno vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013)eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that"
2. The Appellant submits that the prosecution did not prove its case beyond reasonable doubt to warrant a conviction in this case. The three ingredients of the offence of defilement were not proved, these are; whether there was penetration, secondly, whether the appellant was the perpetrator and thirdly whether the age of the 2 nd complainant was proved.
3. The Appellate Court at Meru in Dominic Mwilaria V Republic (2018) KLR . stated that
"It is now beyond peradventure that, in cases of defilement, the prosecution must prove
1. The age of the child
2. The fact of penetration in accordance with section 2(1) of the Sexual Offences Act, and
3. That the perpetrator is the appellant"
4. Proving one ingredient is not enough as all are critically important and that they must be proved beyond reasonable doubt and that the benefit of doubt, if any, ought to be given to the appellant so that the less severe sentence is imposed. The appellant submits that no evidence was provided to link him as the perpetrator of the offences
5. It was a well settled law that the offence of defilement with which the Appellant was charged and subsequently convicted has three main ingredients, to wit, identification and recognition, penetration and the age of the victim.
6. In Criminal appeal 96 of 2017; Michael Mumo Nzioka v Republic [2019] eKLR, the court had this to say:
"It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant's genitalia, the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. See the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, where it was stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
7. In evaluating the appeal, they formulated main issues from the grounds of appeal filed on herein with a view to proving to the court that the Prosecution did not prove the main ingredients of the charge to the requisite standard of beyond reasonable doubt
CORROBORATION.
8. Under the provison to the Section the Court is allowed to solely rely on the evidence of the victim provided the Court satisfied itself on reasons to be recorded that the child is being truthful Criminal Appeal No. 44 of 2016-Sahali Omar vs Repl ,
9. The only evidence the Magistrate considered to corroborate PWI was the Doctor's evidence. The doctor's evidence was on “16/4/15 he was also presented with Peter Wambua Maina 11 years of Ngong Police Station alleged to have been defiled by a person known to him" (page 62 line 15-17 of the record). The doctor found that there were no injuries on genitals and anal region. He said he found several scratch marks around the anal opening but did not state whether they could have been caused by introduction of a penis into the anus. When PW3 indicates in relation to PWI (1 complainant) that he found several scratch marks around the anal opening, the prosecution was obliged to go beyond the evidence offered to show that there was actual penetration by a male sexual organ and that the perpetrator was the appellant. Showing that a male was involved is not enough. Nothing should be left for the court to assume. The court must be certain that the evidence discloses the offence the suspect is charged with and that the offender is the person charged before the court.
DEFENCE CASE
10. The Magistrate failed to take into account the defence raised by the Appellant. The Appellant's testimony was at page 120 to 122 of the record. His witnesses’ evidence (DW 2) was from page 123 to 125 of the record. Both the Appellant and his witness stated that the Appellant had had a mental illness since 2005. He stated that he was on monthly treatment and his mother stated she took him to Mathare Mental Hospital for treatment. In her judgement the Magistrate did not acknowledge this very pertinent fact. She said "He had been on treatment since 2015." [Page 5 of the judgement] [under the heading Defence Case"] This was not the case since both he and his mother testified that he had been on treatment since 2005. This led her to conclude in her judgment that he was aware of everything he was doing. She failed to take into account the fact that the case had to be adjourned at various stages to allow the Appellant to be hospitalized Mathare Mental Hospital for treatment. Indeed, the Court failed to take into account the very pertinent evidence of the mother that his mental condition made him do some of the following things, beating other children and teachers, assaulting his own father, attempting to commit suicide by locking himself in his house and setting it on fire. causing all other members of his family to run away from home.
11. These symptoms would normally disappear if he took his medication. The conclusion and finding that He was of sound mind when he repeatedly defiled the complainants together with other children." is therefore not grounded on any testimony given and proven.
RESPONDENTS WRITTEN SUBMISSIONS
ISSUES ARISING FOR DETERMINATION
1. Under Section 107 of the Evidence Act , the prosecution bears the burden of proof on every element in a criminal charge. The prosecution must discharge this burden beyond reasonable doubt.
PROOF OF PENETRATION
2. Penetration is defined under section 2 (1) of the Sexual
Offences Act No.3 of 2006 as follows:-
"Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person .
Under the same section, Genital Organs are defined as follows:
"Includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.
3. The above finding as was found in the case of John Onzere Kambi v Republic [2013] eKLR where the court noted;
“I find that there was at least partial penetration of the complainant's anal orifice. The said penetration was by way of the appellant's penis. Therefore, I find that the ingredients of the offence of defilement were proved beyond reasonable doubt."
WHETHER THE AGE OF THE CHILD WAS PROVED
4. They submitted that there was also no doubt as to the age of the minors. PW3 who was the doctor that examined the minors recorded the age of PW1 as 11 years old and the age of PW4 as 14 years corroborating the minors' testimony as to their age.PW7 produced the birth certificates of PW1 and PW4 proving their age as of the time of the incident.
POSITIVE IDENTIFICATION OF THE ASSAILANT
5. The minors easily identified the appellant as their pastor as they had attended his church over a substantial period of time. They were also able to identify the appellant on the dock as they testified.
WHETHER THE SENTENCE WAS ILLEGAL
6. Section 8(2 ) of the Act provides for a sentence of life imprisonment. The Appellant was sentenced to serve a term of 50 years imprisonment
7. Section 354 (3) (ii) and (iii) of the Criminal Procedure Code provides as follows:
(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may-
(a) In an appeal from a conviction-
(i) Reverse the finding and sentence, and acquit or
discharge the accused, or order him to be tried by a court of competent jurisdiction; or
(ii). Alter the finding, maintaining the sentence, or,
with or without altering the finding, reduce or increase the sentence; or
(iii) With or without reduction or increase and with or without altering the finding, alter the nature of the sentence;
7. They further submitted that the court is bound by the doctrine of judicial precedent/stare decisis and in the case of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR ) (11 April 2025) (Judgment) the Supreme Court held that the mandatory sentence of life imprisonment as provided under Section 8 of the Sexual Offences Act is lawful and that the court has no jurisdiction to impose a sentence lower than what is prescribed.
ANALYSIS & DETERMINATION
1. The Court considered the Criminal Trial Court record, proceedings, defense, submissions Rulings Order and Judgment. The Petition of Appeal filed and Record of Appeal, this Court finds for determination the following condensed issues;
a) The essential witnesses were not called by Prosecution; no medical evidence linking the Appellant to the matter;
b) The Trial Court erroneously relied only on evidence of minors C/S Section 124 Evidence Act.
c) The Age of the minor (s) was not established and drew wrong inferences to the prejudice of the Appellant.
d) The findings by the Trial Court of the Appellant’s Mental Condition were based on misapprehension of evidence and undertook casual approach. The finding and holding of Trial Court contained in the Judgment is inconsiderate, erroneous, unlawful, biased and untenable in law by failing to take into account the defense put forward and shifting burden of proof on the Appellant and failed to find for the Appellant on parallel evidence.
e) The Trial Court decided the case against the weight of evidence and on a balance of probabilities as opposed to beyond reasonable doubt, thus exceeding and misapplying the Courts jurisdiction.
f) The evidence tendered by the prosecution was replete with pertinent and material contradictions which negated the probative value of the evidence tendered and/or offered. The essential elements of the offences were not proved.
g) The sentence meted out by the Trial Magistrate is manifestly excessive, harsh or punitive.
2. This Court being the 1st Appellate Court, its duty is as set out in the case of Okeno vs. Republic [1972] EA 32 as follows:-
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (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 finding and conclusion; it must make its own findings and draw its own 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.”
THE BURDEN & STANDARD OF PROOF
3. According to Phipson on the Law of Evidence ; the term Burden of Proof has 2 distinct meanings;
a) The obligation of a party to convince the Tribunal on a fact; the obligation of a party to persuade the Tribunal to come to one’s way of thinking. The persuasion would be to get the Tribunal to believe whatever proposition the party is making. The proposition of fact has to be a fact in issue .
b) The obligation to adduce sufficient evidence of a particular fact The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof.
4. Burden of Proof is the obligation to adduce evidence & also convince the Tribunal or Court on facts that prove commission of offence in Criminal Law. The general rule burden proof is by the Prosecution Section 107-110 Evidence Act ; and on occasion the burden of proof is shifted on the Accused person as provided by Section 111 (1) Evidence Act.
111. Burden on accused in certain cases
(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him
(2) Nothing in this section shall
(a)……………………
(b)………………………
(c) affect the burden placed upon an accused person to prove a defense of intoxication or insanity.
Lord Denning stated what amounts to proof beyond reasonable doubt in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 that:-
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor which can be dismissed with the sentence of course it is possible, but not in the least probable, the case i
[...truncated]
1. In the consolidated charge sheet ;
The Appellant herein James Njuguna Kuria was charged in count one with the offence defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006.
Particulars being that on diverse dates between December 2014 and 7th January 2015 at Bondeni area in Kajiado North Sub-county within Kajiado County the accused person unlawfully and intentionally caused his penis to penetrate the anus of PWM a child aged 11 years.
2. In the alternative the accused person was charged with the offence of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act.
It was alleged that on diverse dates between December 2014 and 7th January 2015 at Bondeni area in Kajiado North Sub-county within Kajiado County the accused person unlawfully and intentionally touched the anus of MNM a child aged 11 years with his penis.
3. The Appellant herein James Njuguna Kuria was charged in count one with the offence defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006.
Particulars being that on diverse dates between December 2014 and 7th January 2015 at Bondeni area in Kajiado North Sub-county within Kajiado County the accused person unlawfully and intentionally caused his penis to penetrate the vagina of MNM a child aged 14 years.
4. In the alternative the accused person was charged with the offence of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act.
It was alleged that on diverse dates between December 2014 and 7th January 2015 at Bondeni area in Kajiado North Sub-county within Kajiado County the accused person unlawfully and intentionally touched the vagina of MNM a child aged 14 years with his penis.
PETITION OF APPEAL
5. The Appellant herein being aggrieved by the entire
decision of Hon. C. M. Njagi Principal Magistrate's judgment delivered on 8 th August 2023 appealed against the decision on the following grounds:-
1. The Trial Magistrate erred in law and fact in convicting the Appellant despite the fact that essential witnesses were not called by the prosecution
2. The Trial Magistrate erred in law and fact in convicting the Appellant irrespective of the fact that there was no medical evidence linking the Appellant to the offence for which he was convicted.
3. The Trial Magistrate erred in law and fact by convicting the Appellant while relying on the evidence only of the minors’ contrary to Section 124 of the Evidence Act.
4. The Trial Magistrate erred in law and fact and grossly misdirected herself by convicting the Appellant for the offence of defilement in the absence of clear evidence as to the age of the complainant.
5. The Trial Magistrate erred in law and fact and misdirected herself by drawing the wrong inferences to the prejudice of the Appellant.
6. That the findings of the fact by the Learned Trial Magistrate regarding the Appellant's mental condition were based on a misapprehension of the evidence and especially the casual approach undertaken by the Learned Trial Magistrate to the medical evidence on record.
7. In the premises the finding and holding of the Learned Trial Magistrate as contained in her judgment is inconsiderate, erroneous, unlawful, biased and untenable in law.
8. The Trial Magistrate erred in law in failing to take into account the Defense put forward by the Appellant and his witness, in shifting the burden of proof to the Appellant and in failing to find for the appellant on parallel evidence.
9. That the Learned Magistrate erred in law and fact by deciding, the case against the weight of evidence and on a balance of probabilities as opposed to beyond reasonable doubt, thus exceeding and misapplying the Courts jurisdiction.
10. That the Learned Trial Magistrate erred in law and fact in finding and holding that the Respondent had proved its case beyond requisite standards, whilst the evidence tendered by the prosecution was replete with pertinent and material contradictions which negated the probative value of the evidence tendered and/or offered.
11. That the Learned Trial Magistrate erred in fact and law
when she failed to find and hold that the essential elements of the offences were not proved.
12. That the sentence meted out by the Trial Magistrate is manifestly excessive, harsh or punitive.
TRIAL COURT EVIDENCE
TRIAL COURT PROCEEDINGS
The Trial Court started hearing it was by Hon. J. B. Nyagena PM on 22/5/2015 and she heard PW1 & PW2. On 13/8/2019 Hon. C. Muthoni PM read to the Accused person Section 200 CPC proceeded with PW3 to the end of proceedings & delivered Judgment.
1. PW1 Peter Wambua a minor of 11 years after voire dire examination the Trial Court took sworn statement of the child. PW1 testified that James Njuguna invited him and his friends namely Ndungu and Kiarie to his house.
On reaching the house they found Pastor Njuguna and his wife who welcomed them. They ate supper and slept in one of the bedrooms. In the morning the wife went to work and the pastor called him to his bedroom and locked the door. He tied his eyes using a piece of cloth and inserted his penis into his mouth. He threatened him not to tell anyone. He told him that the penis was oil from God. He feared and never told his mother. They remained indoors and they used to wash utensils and clean the house.
2. When they were about to open school Pastor called him to his bedroom and asked him to remove all his clothes and he applied oil on his buttocks and inserted his penis into his anus. He did this severally and told him that it was "Agano kutoka kwa Mungu’’ and he asked him to sit on the bed; when he cried he hit him on the head. After he finished defiling him he asked him to go and a bath and after that he sat in the sitting room.He went and came back later and defiled him.
3. On different days he took Kiarie to his bedroom and did the same to him,the next day he took Ndungu and defiled him.. He used to cover their eyes using pieces of cloth told them that; that was the blood of Jesus getting into them and cleansing all the diseases they had. When they were about to leave he told them not to tell anyone. His mother knew, they had gone to visit their Pastor. They used to go to church with Njuguna and then back to his home.
4. They used to live with Mutua, Maina and Ndungu. Those were members of their church. He asked Maina to take them to church and from church everybody went home. He said that those things happened in December 2014. He developed a lot of fear. He went for him again and he defiled him. He asked him to suck his penis at night and rape him during the day. He also said that his sister Njeri was also defiled by Pastor Njuguna when she took church drums to church. When he used to suck his penis, he used to tell him to swallow the sperms but he did not. His sister Njeri alerted their mother what had happened the mother questioned him and then she took them to Karen Hospital and later Nairobi Women Hospital.
5. In cross examination he stated that the Accused used to defile them during the day when the wife was away at work or at night when the wife delayed to come home. The 1 st day he went to his house he inserted his penis to his mouth and asked him to swallow the things he released into his mouth. He was walking with a lot of difficulties due to pain. He feared to tell his wife. He said that they went to Karen Hospital once and blood sample was taken from his sister. They were referred to Nairobi Women Hospital.
6. PW2 Catherine Ndungu Wambua stated that she resided in Ngong doing casual jobs and also sold vegetables. She stated that PWI was her 3 rd born child and he was 11 years old and attended school at Garden of Hope school. Mary Njeri Maina, was her child of 14 years old. She attended school at Ngong Township Primary school in class 8. She produced their birth certificates PMF1 I and PMF1 2 . She was told by Mary Njeri Maina that where it had reached she wanted to take ‘rat rat’ poison which is normally used to kill rats. She asked her why and she said they had made a covenant with Pastor. It had happened when they were in company with other children. She explained further that oil was applied in their private parts.
7. After Church Pastor [accused] asked them to carry drum and Bibles to his house. She took her to Karen Hospital and then referred to Nairobi Women Hospital where she was found to be pregnant. She produced the treatment notes from Nairobi Women Hospital. PMFI 3(a) and Ultra sound form PMFI 3(b) and post rape case form PMFI 4. She reported to the Police in Ngong and Pastor was arrested. She was also treated at Karen Health Centre PMFI 5. Mary told her to interrogate Maina and Maina told her what the pastor used to do to him. He inserted the "agano" to PW1's anus. This ‘agano’ was his penis. He also said that he would ask him to suck his penis claiming that that it was oil from God.
8. She took him Karen Hospital and then to Nairobi Women Hospital where he was treated he had a wound on his anus. She produced treatment noted from Karen PMF16. This is post care form from Nairobi Women Hospital PMF17. She takes him monthly for checkups.
9. On cross examination she stated that she suspected Mary was pregnant. In March she took her to Ololua Health she was examined by the Doctor and when she was interrogated she mentioned Pastor James Njuguna sent them to take drums and bible the store and then he came and applied oil on her vagina then inserted his penis. Mary got a baby boy.
10. PW3 - Dr. Joseph Maundu from Nairobi Police Surgery testified that on 16/3/2015 he examined Mary Njeri Maina a 14 years old referred from Ngong Police Station on allegation that she was defiled on July 2014 by a person known to her. After examination she was found to be about 32 weeks pregnant. She had been examined earlier in Nairobi Women’s Hospital. He signed the P3 Form on 16/3/15 and he produced it as an exhibit.
11. He was also presented with Peter Wambua Maina 11 years old alleged to have been defiled in December 2014 by a person known to him. When he examined him he found several scratch marks around the anal opening. He had been treated at Nairobi Women Hospital and Karen. He signed the documents on 16/3/15 and it in evidence MF1 8.
12. On cross examination he stated that Mary was 32 weeks pregnant clinically. The offence took place in July 2014 and he examined her on 1/3/15. She was almost due to delivery.
13. PW4 Mary Njeri Maina said that she was 19 years old. In the year 2014 she was 14 years old and she recalled in July 2014 she was invited by her friend Ciku to their church called First Born of the Holy Spirit Church. Then Pastor was James Njuguna Kuria. After the service ended the Pastor said the youth to remain behind for dance she remained with Casty, Njoki and three boys Maina, Mutua and Kamwana
14. The pastor told them to take the drums to the store which was a distance from the church. The store had a division using a curtain and there was a bed and stools. In the divided room we were six of us and the pastor. He told the girls to go to one room. They said the prayer on the bed, Castor, Njoki and her then he asked them to remove their clothes. He said he wanted to build a covenant in them. He took the oil and applied it on his penis. He said he “anataka kupanga agano ndani yetu” (He wanted to build a promise in us.). He had sex with all the three girls Casty, Njoki and Mary.
15. He threatened them not to tell anyone at home as they should respect their elders. They respected him as a pastor.
16. She said that Pastor sodomized the boys and defiled the girls. He also instructed Maina to have sex with them. She also said that pastor defiled her at their home when he went there and found her alone.
She stated that she started feeling unwell and her mother suspected her to be pregnant and when pregnant test was done the results were positive. She delivered in May 2015. A DNA test was done twice as the pastor had denied being responsible but both tests showed that pastor was the father of the child.
17. On cross examination she stated that pastor could put loud music when he was defiling her so that no one could hear even if she raised an alarm. She also stated that Pastor defiled them inside the church for the second time.
18. PW 5 Henry Kiptoo Sang of Government Chemist dealing with DNA analysis to determine genetic relationships testified that on 15/9/2015 he received/obtained buccal swab analysis samples from the following
(i) Mary Njeri who was said to be complainant in this case.
(ii) Christian Nduo who was said to be a child.
(iii) James Njuguna Kuria the accused person.
19. Accompanying them was an exhibit memo Form requesting them to determine the paternity of the child Christian Nduo.
Based on the DNA profiles he was able to find out that half of the DNA elements that were found on the child Christian Nduo came from the complainant Mary Njeri while the other half originated from James Njuguna Kuria the accused person. He did a probability of paternity and it showed there are 99.99% chances that James Njuguna was the biological father to Christian Nduo, Mary Njeri’s child. He produced the Analysis Report as exhibit in Court.
20. PW6 - John Njuguna a clinician from Nairobi Women Hospital stated that MNM was attended by her colleague Jeff Njoroge a Clinician who no longer works at the hospital but they worked together in the department for more than three years. He said that MNM was attended in the facility on 5/3/2015. She reported to have been defiled in June and December 2014. The patient was diagnosed with UTI and she was pregnant. She produced a PRC Form filed on 5/3/2015 and treatments notes from Karen Health Centre where she was treated and given referral to their facility.
21. On cross examination he said that the victim was pregnant and the offence occurred twice in June and December 2014. She gave reports of going to the Pastors house and the pastor defiled her.
22. PW7 No. 44173 Cpl Francis Kandie testified that the matter was handed over to him by PC Namusasi who resigned from the service. He stated that the accused person was charged with the offence of defiling two minors but he denied after a DNA report was done. The DNA were for the suspect, the victim and the child.. The Court ordered another DNA to be done after application by the accused. He witnessed the DNA sampling of 2 nd test. The outcome of the 2 nd DNA analysis was the same as the 1 st one which was positive that it belonged to the complainant, the accused and the child.
23. DW1 on his defense he said that he was a Pastor in First Born of the Holy Spirit Ministry and he was also employed in Fruit of Zion Sacco Society Limited. He knew the Complainant M.N.M PW1as an employee of Fruit Zion Saccos as a tea girl.
24. In his statement he stated that he knew the mother to PW1 whom he claimed to be his lover. He stated that he was mentally ill and had been receiving treatment which kept him from being violent. No medical documents were produced to support the issue of being mentally ill.
25. On cross examination he said that he understood the charges he was facing, charges of defilement. He claimed that mother to PW1 employed her to be cooking tea for the Pastors. He confirmed to have defiled Mary Njeri and the child she sired was his. PW1 was 15years old.
26. DW2 Grace Wanjiru testified that the accused person was her last born. She could not say much about his behavior apart from him being a church person. She said that the accused was a bad child in class and when he was seven years old he was expelled from school because of beating children and teachers. In the year 2005 she received a call from the police station that her son was detained in the station because of defiling someone's child. He locked himself in his house and lit his house on fire. He wanted to kill himself in the house. People rescued him. She took him to Mathare Hospital where he was admitted for 2 months. I took him if he did not take medication he was violent.
APPELLANTS WRITTEN SUBMISSIONS.
1. The Appellant relies on the case of Irene Atieno Ochieng v Republic [2017] eKLR where the court stated that:
"As this is the Appellant's first appeal, the role of this appellate Court of first instance is well settled. It was held in the case of Okeno vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013)eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that"
2. The Appellant submits that the prosecution did not prove its case beyond reasonable doubt to warrant a conviction in this case. The three ingredients of the offence of defilement were not proved, these are; whether there was penetration, secondly, whether the appellant was the perpetrator and thirdly whether the age of the 2 nd complainant was proved.
3. The Appellate Court at Meru in Dominic Mwilaria V Republic (2018) KLR . stated that
"It is now beyond peradventure that, in cases of defilement, the prosecution must prove
1. The age of the child
2. The fact of penetration in accordance with section 2(1) of the Sexual Offences Act, and
3. That the perpetrator is the appellant"
4. Proving one ingredient is not enough as all are critically important and that they must be proved beyond reasonable doubt and that the benefit of doubt, if any, ought to be given to the appellant so that the less severe sentence is imposed. The appellant submits that no evidence was provided to link him as the perpetrator of the offences
5. It was a well settled law that the offence of defilement with which the Appellant was charged and subsequently convicted has three main ingredients, to wit, identification and recognition, penetration and the age of the victim.
6. In Criminal appeal 96 of 2017; Michael Mumo Nzioka v Republic [2019] eKLR, the court had this to say:
"It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant's genitalia, the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. See the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, where it was stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
7. In evaluating the appeal, they formulated main issues from the grounds of appeal filed on herein with a view to proving to the court that the Prosecution did not prove the main ingredients of the charge to the requisite standard of beyond reasonable doubt
CORROBORATION.
8. Under the provison to the Section the Court is allowed to solely rely on the evidence of the victim provided the Court satisfied itself on reasons to be recorded that the child is being truthful Criminal Appeal No. 44 of 2016-Sahali Omar vs Repl ,
9. The only evidence the Magistrate considered to corroborate PWI was the Doctor's evidence. The doctor's evidence was on “16/4/15 he was also presented with Peter Wambua Maina 11 years of Ngong Police Station alleged to have been defiled by a person known to him" (page 62 line 15-17 of the record). The doctor found that there were no injuries on genitals and anal region. He said he found several scratch marks around the anal opening but did not state whether they could have been caused by introduction of a penis into the anus. When PW3 indicates in relation to PWI (1 complainant) that he found several scratch marks around the anal opening, the prosecution was obliged to go beyond the evidence offered to show that there was actual penetration by a male sexual organ and that the perpetrator was the appellant. Showing that a male was involved is not enough. Nothing should be left for the court to assume. The court must be certain that the evidence discloses the offence the suspect is charged with and that the offender is the person charged before the court.
DEFENCE CASE
10. The Magistrate failed to take into account the defence raised by the Appellant. The Appellant's testimony was at page 120 to 122 of the record. His witnesses’ evidence (DW 2) was from page 123 to 125 of the record. Both the Appellant and his witness stated that the Appellant had had a mental illness since 2005. He stated that he was on monthly treatment and his mother stated she took him to Mathare Mental Hospital for treatment. In her judgement the Magistrate did not acknowledge this very pertinent fact. She said "He had been on treatment since 2015." [Page 5 of the judgement] [under the heading Defence Case"] This was not the case since both he and his mother testified that he had been on treatment since 2005. This led her to conclude in her judgment that he was aware of everything he was doing. She failed to take into account the fact that the case had to be adjourned at various stages to allow the Appellant to be hospitalized Mathare Mental Hospital for treatment. Indeed, the Court failed to take into account the very pertinent evidence of the mother that his mental condition made him do some of the following things, beating other children and teachers, assaulting his own father, attempting to commit suicide by locking himself in his house and setting it on fire. causing all other members of his family to run away from home.
11. These symptoms would normally disappear if he took his medication. The conclusion and finding that He was of sound mind when he repeatedly defiled the complainants together with other children." is therefore not grounded on any testimony given and proven.
RESPONDENTS WRITTEN SUBMISSIONS
ISSUES ARISING FOR DETERMINATION
1. Under Section 107 of the Evidence Act , the prosecution bears the burden of proof on every element in a criminal charge. The prosecution must discharge this burden beyond reasonable doubt.
PROOF OF PENETRATION
2. Penetration is defined under section 2 (1) of the Sexual
Offences Act No.3 of 2006 as follows:-
"Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person .
Under the same section, Genital Organs are defined as follows:
"Includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.
3. The above finding as was found in the case of John Onzere Kambi v Republic [2013] eKLR where the court noted;
“I find that there was at least partial penetration of the complainant's anal orifice. The said penetration was by way of the appellant's penis. Therefore, I find that the ingredients of the offence of defilement were proved beyond reasonable doubt."
WHETHER THE AGE OF THE CHILD WAS PROVED
4. They submitted that there was also no doubt as to the age of the minors. PW3 who was the doctor that examined the minors recorded the age of PW1 as 11 years old and the age of PW4 as 14 years corroborating the minors' testimony as to their age.PW7 produced the birth certificates of PW1 and PW4 proving their age as of the time of the incident.
POSITIVE IDENTIFICATION OF THE ASSAILANT
5. The minors easily identified the appellant as their pastor as they had attended his church over a substantial period of time. They were also able to identify the appellant on the dock as they testified.
WHETHER THE SENTENCE WAS ILLEGAL
6. Section 8(2 ) of the Act provides for a sentence of life imprisonment. The Appellant was sentenced to serve a term of 50 years imprisonment
7. Section 354 (3) (ii) and (iii) of the Criminal Procedure Code provides as follows:
(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may-
(a) In an appeal from a conviction-
(i) Reverse the finding and sentence, and acquit or
discharge the accused, or order him to be tried by a court of competent jurisdiction; or
(ii). Alter the finding, maintaining the sentence, or,
with or without altering the finding, reduce or increase the sentence; or
(iii) With or without reduction or increase and with or without altering the finding, alter the nature of the sentence;
7. They further submitted that the court is bound by the doctrine of judicial precedent/stare decisis and in the case of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR ) (11 April 2025) (Judgment) the Supreme Court held that the mandatory sentence of life imprisonment as provided under Section 8 of the Sexual Offences Act is lawful and that the court has no jurisdiction to impose a sentence lower than what is prescribed.
ANALYSIS & DETERMINATION
1. The Court considered the Criminal Trial Court record, proceedings, defense, submissions Rulings Order and Judgment. The Petition of Appeal filed and Record of Appeal, this Court finds for determination the following condensed issues;
a) The essential witnesses were not called by Prosecution; no medical evidence linking the Appellant to the matter;
b) The Trial Court erroneously relied only on evidence of minors C/S Section 124 Evidence Act.
c) The Age of the minor (s) was not established and drew wrong inferences to the prejudice of the Appellant.
d) The findings by the Trial Court of the Appellant’s Mental Condition were based on misapprehension of evidence and undertook casual approach. The finding and holding of Trial Court contained in the Judgment is inconsiderate, erroneous, unlawful, biased and untenable in law by failing to take into account the defense put forward and shifting burden of proof on the Appellant and failed to find for the Appellant on parallel evidence.
e) The Trial Court decided the case against the weight of evidence and on a balance of probabilities as opposed to beyond reasonable doubt, thus exceeding and misapplying the Courts jurisdiction.
f) The evidence tendered by the prosecution was replete with pertinent and material contradictions which negated the probative value of the evidence tendered and/or offered. The essential elements of the offences were not proved.
g) The sentence meted out by the Trial Magistrate is manifestly excessive, harsh or punitive.
2. This Court being the 1st Appellate Court, its duty is as set out in the case of Okeno vs. Republic [1972] EA 32 as follows:-
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (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 finding and conclusion; it must make its own findings and draw its own 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.”
THE BURDEN & STANDARD OF PROOF
3. According to Phipson on the Law of Evidence ; the term Burden of Proof has 2 distinct meanings;
a) The obligation of a party to convince the Tribunal on a fact; the obligation of a party to persuade the Tribunal to come to one’s way of thinking. The persuasion would be to get the Tribunal to believe whatever proposition the party is making. The proposition of fact has to be a fact in issue .
b) The obligation to adduce sufficient evidence of a particular fact The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof.
4. Burden of Proof is the obligation to adduce evidence & also convince the Tribunal or Court on facts that prove commission of offence in Criminal Law. The general rule burden proof is by the Prosecution Section 107-110 Evidence Act ; and on occasion the burden of proof is shifted on the Accused person as provided by Section 111 (1) Evidence Act.
111. Burden on accused in certain cases
(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him
(2) Nothing in this section shall
(a)……………………
(b)………………………
(c) affect the burden placed upon an accused person to prove a defense of intoxication or insanity.
Lord Denning stated what amounts to proof beyond reasonable doubt in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 that:-
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor which can be dismissed with the sentence of course it is possible, but not in the least probable, the case i
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