REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT MACAHAKOS
CRIMINAL APPEAL NO. El18 OF 2024
JOEL SILA MUTUA .............................................................APPELLANT
-VERSUS-
REPUBLIC........................................................................ RESPONDENT
(Being an appeal from the conviction and judgment in S. O No. E014 of 2024 at Chief Magistrate 's Court at Machakos delivered on 13/05/2024)
JUDGEMENT
1. The Appellant Joel Sila Mutua was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 3rd day of April 2024 at Kithima village Nzoweni sub-location Ngelani location Machakos subcounty within Machakos county intentionally and unlawfully caused his penis into the vagina of E.N.M. (name withheld) a child aged 17 years old juvenile contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.
2. In the alternative the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars are that on the 3rd day of April 2024 at Kithima village Nzoweni sub-location Ngelani location Machakos sub-county within Machakos county intentionally and unlawfully touched the vagina of E.N.M. (name withheld) a child aged 17 years old juvenile without her consent contrary to section 11(1) of the Sexual Offences Act.
3. The Appellant pleaded not guilty to the main charge and to the alternative charge and the matter was set down for hearing. The prosecution called five witnesses in proving its case.
4. The Appellant gave sworn defence evidence and called three witnesses.
5. Upon considering the evidence placed before the trial court, the Appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced to 15 years imprisonment on 24th December 2024.
6. Being dissatisfied with the decision of the trial court, the Appellant has lodged the instant appeal against both the conviction and sentence. The Appellant’s undated Petition of Appeal raises 3 grounds of appeal as follows:-
1. THAT the learned trial magistrate erred in law and fact by convicting the Appellant on inconsistent circumstantial evidence despite there being co-existing circumstances which had weakened the inference of guilt of the Appellant.
2. THAT the learned trial magistrate erred in law and fact when he failed to appreciate that the prosecution had not proved its case against the Appellant to the required legal standards that is beyond reasonable doubt.
3. THAT the learned trial Magistrate erred in law and fact by failing to consider the time spent in remand custody at the time of sentencing.
7. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 08/08/2025 while the Respondent’s submissions are dated 29/09/2025.
8. The Appellant prays that the appeal succeeds in its entirety, conviction quashed and sentence set aside.
9. The State has conceded to the appeal. Ms. Agatha Prosecution Counsel after going through the record and the Appellant's submissions felt that the prosecution’s case at the trial court was marred with inconsistencies and contradictions.
Determination
10. As a first appellate Court, I have also subjected the evidence adduced before the trial magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
11. Notwithstanding the fact that the State has conceded to the Appeal, I have carefully perused the trial court’s record and considered the Petition of appeal and the submissions on the appeal. I have noted that as submitted by the State, the character of the complainant/victim during the entire proceedings of the case leaves a lot to be desired.
12. The victim PW1 did not testify that she was defiled by the Appellant in the case instead she testified that she visited the Appellant’s house and slept there but she did not state that she had intercourse/sex with him. She stated that on the alleged day she went to the Appellant's parents and stayed there and went to greet him as a friend, (see proceedings page 11) She stated that she slept with the Appellant's sister and nothing happened. She was referred severally to her statement where she said she wrote that "she had sex with the Appellant" but she did not confirm this nor testify to this fact. She did not at all testify that she was defiled by the Appellant. It is worth to note that the PW1 was declared a hostile/refractory witness contrary to Section 152(3) of the Evidence act but still this did not shake her. She stood firm that the Appellant did not defile her even after she was remanded in the children's home.
13. The offence of defilement is provided for under Section 8 of the Sexual Offences Act. Section 8(1) provides that:
"A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”.
14. To sustain a conviction for the offense of defilement, the prosecution has to prove three ingredients. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. The Court in that case stated:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant”.
i. Age of victim
15. A Birth certificate was produce showing the complainant was born on 21/12/2007. The defilement is alleged to have occurred on 03/04/2024. The victim was aged 17 years and 2 months old and therefore a child.
ii. penetration
16. On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows:
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
17. The testimony of the complainant/victim to prove this ingredient is critical. However, in this case the victim PW1 declined to testify as regards penetration. She denied in her evidence that she slept at the Appellant's house and that nothing happened. The testimony of the doctor was also not conclusive to prove this ingredient. PW4 the clinical doctor stated that the findings were that the was defiled by a person she knew and the P3 Form was filled 2 days after the incident. The doctor testified that the hymen was broken, not fresh and pus cells present and according to examination there had been penetration. In cross examination the doctor stated that he has no evidence that the Appellant defiled the victim (see proceedings page 16 – 18 of proceedings). In David Mwingirwa vs. Republic [20171 eKLR the Court of Appeal considered High Court's decision to uphold the trial court's conviction for incest on the basis that the complainant's hymen had been broken and held that:
"From that reasoning of the learned judge, it would seem that the certainty or confidence with which she asserted that there was overwhelming evidence of LK having engaged in sexual activity came in no small measure from what she considers the corroboration afforded by the evidence of PW4 on the broken hymen. According to the learned judge, PW4 was of the view that "there was continuous process of defilement. " With respect, we do not think that this was entirely correct. The Clinical Officer PW4 noticed that nor was there spermatozoa or any male emission in her vaginal carnal. He merely stated that the broken hymen was suggestive of an ongoing process of defilement. He did not suggest that his said conclusion was based on any other observation beyond the broken hymen. Then this brings to the fore the issue raised by the appellant whether, in the absence of any other medical or physical evidence, a broken hymen is conclusive proof of penetrative sexual intercourse as PW4 seemed to suggest (his remarks in the P3 and his testimony in Court do not go beyond a suggestion) and as the learned judge seemed to have concluded, we think it was an error for the learned judge to form a firm conclusion of defilement from the fact alone of the broken hymen. "
18. It is to be observed that the medical documents do not show any signs of penetration despite the victim being seen within two days of the occurrence of the alleged offence. The evidence on penetration was not corroborated and unsafe for the trial court to have relied upon to conclude that there was penetration.
iii. Positive identification of the assailant
19. The ingredient of penetration above having not been proved, then automatically, proof of positive identification of the Appellant as the assailant equally failed.
20. Consequently, this court entirely agrees with Ms. Agatha prosecution counsel and the Appellant that the evidence on the trial court’s record failed to meet the required standard of proof in criminal cases. The essential ingredients of defilement were not proved beyond a reasonable doubt.
21. The upshot is that this appeal succeeds. The conviction is quashed. The sentence of fifteen years is set aside. The Appellant is forthwith set at liberty unconditionally unless otherwise lawfully held.
It is so ordered. File closed.
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 6TH MARCH 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 6TH MARCH 2026
IN THE HIGH COURT OF KENYA AT MACAHAKOS
CRIMINAL APPEAL NO. El18 OF 2024
JOEL SILA MUTUA .............................................................APPELLANT
-VERSUS-
REPUBLIC........................................................................ RESPONDENT
(Being an appeal from the conviction and judgment in S. O No. E014 of 2024 at Chief Magistrate 's Court at Machakos delivered on 13/05/2024)
JUDGEMENT
1. The Appellant Joel Sila Mutua was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 3rd day of April 2024 at Kithima village Nzoweni sub-location Ngelani location Machakos subcounty within Machakos county intentionally and unlawfully caused his penis into the vagina of E.N.M. (name withheld) a child aged 17 years old juvenile contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.
2. In the alternative the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars are that on the 3rd day of April 2024 at Kithima village Nzoweni sub-location Ngelani location Machakos sub-county within Machakos county intentionally and unlawfully touched the vagina of E.N.M. (name withheld) a child aged 17 years old juvenile without her consent contrary to section 11(1) of the Sexual Offences Act.
3. The Appellant pleaded not guilty to the main charge and to the alternative charge and the matter was set down for hearing. The prosecution called five witnesses in proving its case.
4. The Appellant gave sworn defence evidence and called three witnesses.
5. Upon considering the evidence placed before the trial court, the Appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced to 15 years imprisonment on 24th December 2024.
6. Being dissatisfied with the decision of the trial court, the Appellant has lodged the instant appeal against both the conviction and sentence. The Appellant’s undated Petition of Appeal raises 3 grounds of appeal as follows:-
1. THAT the learned trial magistrate erred in law and fact by convicting the Appellant on inconsistent circumstantial evidence despite there being co-existing circumstances which had weakened the inference of guilt of the Appellant.
2. THAT the learned trial magistrate erred in law and fact when he failed to appreciate that the prosecution had not proved its case against the Appellant to the required legal standards that is beyond reasonable doubt.
3. THAT the learned trial Magistrate erred in law and fact by failing to consider the time spent in remand custody at the time of sentencing.
7. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 08/08/2025 while the Respondent’s submissions are dated 29/09/2025.
8. The Appellant prays that the appeal succeeds in its entirety, conviction quashed and sentence set aside.
9. The State has conceded to the appeal. Ms. Agatha Prosecution Counsel after going through the record and the Appellant's submissions felt that the prosecution’s case at the trial court was marred with inconsistencies and contradictions.
Determination
10. As a first appellate Court, I have also subjected the evidence adduced before the trial magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
11. Notwithstanding the fact that the State has conceded to the Appeal, I have carefully perused the trial court’s record and considered the Petition of appeal and the submissions on the appeal. I have noted that as submitted by the State, the character of the complainant/victim during the entire proceedings of the case leaves a lot to be desired.
12. The victim PW1 did not testify that she was defiled by the Appellant in the case instead she testified that she visited the Appellant’s house and slept there but she did not state that she had intercourse/sex with him. She stated that on the alleged day she went to the Appellant's parents and stayed there and went to greet him as a friend, (see proceedings page 11) She stated that she slept with the Appellant's sister and nothing happened. She was referred severally to her statement where she said she wrote that "she had sex with the Appellant" but she did not confirm this nor testify to this fact. She did not at all testify that she was defiled by the Appellant. It is worth to note that the PW1 was declared a hostile/refractory witness contrary to Section 152(3) of the Evidence act but still this did not shake her. She stood firm that the Appellant did not defile her even after she was remanded in the children's home.
13. The offence of defilement is provided for under Section 8 of the Sexual Offences Act. Section 8(1) provides that:
"A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”.
14. To sustain a conviction for the offense of defilement, the prosecution has to prove three ingredients. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. The Court in that case stated:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant”.
i. Age of victim
15. A Birth certificate was produce showing the complainant was born on 21/12/2007. The defilement is alleged to have occurred on 03/04/2024. The victim was aged 17 years and 2 months old and therefore a child.
ii. penetration
16. On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows:
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
17. The testimony of the complainant/victim to prove this ingredient is critical. However, in this case the victim PW1 declined to testify as regards penetration. She denied in her evidence that she slept at the Appellant's house and that nothing happened. The testimony of the doctor was also not conclusive to prove this ingredient. PW4 the clinical doctor stated that the findings were that the was defiled by a person she knew and the P3 Form was filled 2 days after the incident. The doctor testified that the hymen was broken, not fresh and pus cells present and according to examination there had been penetration. In cross examination the doctor stated that he has no evidence that the Appellant defiled the victim (see proceedings page 16 – 18 of proceedings). In David Mwingirwa vs. Republic [20171 eKLR the Court of Appeal considered High Court's decision to uphold the trial court's conviction for incest on the basis that the complainant's hymen had been broken and held that:
"From that reasoning of the learned judge, it would seem that the certainty or confidence with which she asserted that there was overwhelming evidence of LK having engaged in sexual activity came in no small measure from what she considers the corroboration afforded by the evidence of PW4 on the broken hymen. According to the learned judge, PW4 was of the view that "there was continuous process of defilement. " With respect, we do not think that this was entirely correct. The Clinical Officer PW4 noticed that nor was there spermatozoa or any male emission in her vaginal carnal. He merely stated that the broken hymen was suggestive of an ongoing process of defilement. He did not suggest that his said conclusion was based on any other observation beyond the broken hymen. Then this brings to the fore the issue raised by the appellant whether, in the absence of any other medical or physical evidence, a broken hymen is conclusive proof of penetrative sexual intercourse as PW4 seemed to suggest (his remarks in the P3 and his testimony in Court do not go beyond a suggestion) and as the learned judge seemed to have concluded, we think it was an error for the learned judge to form a firm conclusion of defilement from the fact alone of the broken hymen. "
18. It is to be observed that the medical documents do not show any signs of penetration despite the victim being seen within two days of the occurrence of the alleged offence. The evidence on penetration was not corroborated and unsafe for the trial court to have relied upon to conclude that there was penetration.
iii. Positive identification of the assailant
19. The ingredient of penetration above having not been proved, then automatically, proof of positive identification of the Appellant as the assailant equally failed.
20. Consequently, this court entirely agrees with Ms. Agatha prosecution counsel and the Appellant that the evidence on the trial court’s record failed to meet the required standard of proof in criminal cases. The essential ingredients of defilement were not proved beyond a reasonable doubt.
21. The upshot is that this appeal succeeds. The conviction is quashed. The sentence of fifteen years is set aside. The Appellant is forthwith set at liberty unconditionally unless otherwise lawfully held.
It is so ordered. File closed.
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 6TH MARCH 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 6TH MARCH 2026