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JudgmentJOHN KINYUA VS The Republic11 min read

JOHN KINYUA VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(An Appeal from the decision of Hon. N. KAHARA S.R.M in Siakago MCSO No. E043 of 2022 Delivered on 29th January, 2024)


  1. The appellant was charged with the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act no.3 of 2006. The particulars were that, on the 3rd day of August, 2022 at Kirimari village in Mbeere South sub-County within Embu County he intentionally and unlawfully inserted his private part namely penis into the private part namely vagina of H.W.N, a girl aged 9 years. He faced an alternative count of committing an indecent act with a child contrary to section 11 (A) of the Sexual Offences Act No. 3 of 2006, the particulars being that on the same date, place and time, he intentionally and unlawfully touched the genital organ namely vagina of H.W.N a child aged 9 years with his genital organ namely penis.
  2. The matter proceeded to full trial. PW1 the complainant stated that she was born on 2/12/2012 and that the appellant is a person known to her as she used to see him when going to fetch water from the borehole that is near the school. That he knows him by name John. She stated that on the 31/8/2022, she was walking to school when she met the appellant who stopped her and asked her where she was going. He went towards her and she started running but she fell.
  3. The appellant carried her to a nearby bush and then did “tabia mbaya” to her. He covered her mouth with his hand, removed her panty, removed his trouser and the thing he uses to urinate and put it inside her thing that she used to urinate. That after he removed her panty, he made her to lie on the ground, then he removed his trouser and slept on top of her and defiled her. That she felt a lot of pain but she could not scream since he had covered her mouth with his hand.
  4. That after he finished, he left her in the bush. She wore her panty and went to a neighbour called Mama Wendo and told her what the appellant had done to her. Mama Wendo took her to another neighbour and they called her mother Edith Njoki who came and took her to Kirititi Police Station and later to Kiritiri Health Centre. That the appellant was wearing a wrist watch and a ring that she identified and were produced as exhibits. In cross examination she said that it is not her parents who told her what to say in court and that she knows the appellant very well and she knows where he lives. She also said she knows his name as John.
  5. PW2 was Edith Njoki the mother to the complainant who stated that she knew the appellant even before the incident as he is her neighbour. She produced the birth certificate of the complainant as an exhibit. She stated that on the 31/8/2022, she prepared PW1 to go to school and PW1 left the house at 6:45 am. That she received a phone call from her neighbours called Njoki who asked her to rush and go take PW1 to hospital as she had been defiled. That she rushed to the nieghbours homestead and found PW1 whose clothes were dirty with soil and her hair was also dirty.
  6. That she asked PW1 what had happened and she narrated how she met someone who took her to the bush and did bad things to her. She stated that the person was wearing a wrist watch and a ring and she could recognize him if he saw him. She also said she knew where the said person lives. That she took the complainant to Kiritiri Police Station and to Kiritiri Health Centre where she was treated. That the appellant was later arrested and PW1 identified him at the Police Station.
  7. PW3 was PC Esther Mutua who stated that on the day of the incident, she was at the station when a child aged 7 years went with her mother to report a defilement case. The girl narrated what happened to her when she was on her way to school when the appellant met her and asked her where she was going. That PW1 started running away but the appellant caught up with her and carried her to a nearby bush and defiled her. That the appellant threatened to cut her with a knife and when he finished defiling her, he left her and run away.
  8. That on the 7/10/2022, the appellant was arrested by village elders and taken to the police station and when PW1 went to the station, she identified the appellant as the person who defiled her. That she also identified the ring and the wrist watch that appellant was wearing on the day that he defiled her. She produced the birth certificate of PW1 showing that she was born on the 2/10/2022. On cross examination she stated that the appellant threatened her with a knife and that when the appellant was arrested, she was found with the wrist watch and the ring that he was wearing on the date of the incident.
  9. PW4 was Christine Njagi, a clinical officer at Kiritiri Health Centre. She produced P3 form which was filled by her colleague James Mureri whom she had worked with for 4 years and who was on study leave. She stated that on examination PW1 had bruises on her vagina and a minor tear. Her hymen was missing and the PRC form indicated that she had blood stains. She concluded that there was defilement and penetration.
  10. The appellant was placed on his defence and he gave sworn evidence. He stated that in July, 2022 he was working as a shamba boy for David Kamau in Pia Kirinyaga where he worked until October, 2022. That on 7/10/2022 he went home to visit and as he was walking home, he met with Angeline Nyakio a niece and he went to greet her and her son. That he saw John with 2 boda boda riders and sub area and Murimi. That John greeted him using a hand shake and he slapped him and said to him that he was hiding children at Iria-murai primary school, which he denied.
  11. That he was taken to Iriamurai Primary School and Mrs. Ngari a teacher in the said school said one of the pupils was at home while the other was in hospital and the parents of the pupil who was at home when they were told his name said he was not the perpetrator. That he was taken to the police station and when the girl who was taken to hospital saw him at the police station also said that he is not the one who defiled her describing the person who defiled her as one who had dreadlocks tall with a dark complexion. That the police said they would implicate him with bhang which case is still pending in court. On cross examination, he stated that the wrist watch and the ring were not his though they were recovered from him. That the girl did not identify him at the police station.
  12. The appellant was found guilty, convicted and sentenced to serve life imprisonment. He was dissatisfied with both the sentence and the conviction and he has moved this court by way of a petition of appeal dated the 9/2/2024 listing the following grounds:
  13. The Learned Magistrate erred in law and in fact by imposing a harsh and excessive sentence upon the appellant without considering, the appellants mitigation and without taking into consideration that the purpose of sentence should not only be for retribution but also rehabilitation.
  14. The Learned Magistrate erred in both law and fact in failing to find that PW1’s evidence was inconsistent.
  15. That the Learned Magistrate erred in law and in fact in failing to find that the prosecution did not prove the ingredients of the offence of defilement in particular identification of the appellant as no identification parade was conducted.
  16. The appellant prays that the appeal be allowed, the conviction be quashed and the sentence be set aside /or reviewed.
  17. The appeal was canvassed by way of written submissions which this court has duly considered. From the evidence on record and the submissions by parties, the following are the issues for determination.
  18. Whether the prosecution has proved the case against the appellant beyond my any reasonable doubt.
  19. Whether the sentence is harsh and excessive.
  20. The appellant herein was charged with the offence of defilement contrary to section 8 (1) (2) of the Sexual offences Act and an alternative count of committing an indecent act with a child. The ingredients of the offence of defilement as laid down in the case of Simiyu & Another Vs. Republic (2005) eKLR are as follows:
  21. Proof of penetration
  22. Age of the complainant
  23. Positive identification of the perpetrator
  24. On the first element of penetration, the same is defined in section 2 of the Sexual offences Act, No. 3 of 2006

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

  1. PW1 in her evidence gave a detailed account of what happened on the 31st August, 2022 when she was on her way to school when she met with a man and asked her where she was going. She started running away and the man ran after her and she fell down. The man carried her to a nearby bush and defiled her. Her evidence was corroborated by that of PW4 a clinical officer at Kiritiri Health Centre who produced a P3 form which had been filled by her colleague, James Mureri who examined PW1. She concluded that PW1 had been defiled and there was penetration.
  2. On the age of the complainant, it was the duty of the respondent to proof that the complainant was a minor when the offence was committed. In her evidence PW1 stated that she was 10 years at the time which evidence was corroborated by PW2, her mother. A birth certificate was produced as an exhibit which shows that PW1 was born on 2nd October, 2012 and was therefore a minor on the date the incident happened. He was ten years at the time.
  3. On whether the appellant was positively identified, the appellant in his submissions stated that the identification was unsatisfactory due to the fact that the identification parade was not done. He contended that PW1 did not give any description to the police on her perpetrator when she made her report at the police station. That such a report was crucial in testing the correctness of the identification of the appellant. That PW1 only mentioned that the perpetrator was wearing a watch and a ring which description is vague.

That when the appellant was arrested, PW1 stated that he was not the one who defiled her and since PW1 was a single identifying witness, the trial court ought to have exercised caution before admitting her evidence. He relied on the case of Kelvin Vs. Ndung’u Wangui Vs. Republic 51 of 2021.

  1. On its part the respondent submitted that the identification was by way of recognition, and there was no need of identification parade.
  2. The court has considered the issue of identification of the appellant.

PW1 stated that the incident happened during the day and that she knew her perpetrator as one John who she used to see as she went to fetch water from the borehole near her school. She also stated that the appellant was wearing a watch and a ring which it is alleged she identified when they were produced in court as exhibits. She did not tell the court how she was able to identify them and what was unique about the watch or the ring. According to the evidence of PW2, the appellant was their neighbour and that when she was called by Njoki was is also a neighbour she found PW1 in her homestead and on asking her what had happened she said that someone had caught her and had taken her to the bush and did bad manners on her.

  1. It was her further evidence that PW1 told her that she could recognize the person who defiled her if she saw him again and that the person was wearing a wrist watch and a ring. PW1 also said she knew where that person lives but PW1, did not mention the appellant by name yet he is said to be their neighbour. Further, the appellant was arrested after a period of more than two months from the date of the incident. The period of delay in effecting arrest was not explained by the investigating officer if indeed PW1 was able to identify the appellant as the perpetrator. The investigating officer has not alleged in any way that the appellant took cover or disappeared from home. Indeed, if the appellant was identified as alleged there is no reason why he was not arrested earlier that it was done.
  2. Still on identification, the appellant in his defence stated that when the child who was defiled first saw her in the police station, the child said that the appellant was not the one who defiled her. This evidence was not challenged by the prosecution. It appears to this court that the only connection of the appellant with the offence, was the watch and the ring that he was wearing. This cannot be said to be sufficient evidence of identification of the appellant in the circumstances.
  3. Before I pen off, I think it is only important for this court to mention on material contradiction in the evidence of PW1. When she testified, she stated that she was not threatened by the appellant at all. In the evidence of the investigating officer, she stated that   PW1 was threatened with a knife but PW1 herself did not make any mention of a knife in her evidence.
  4. As submitted by the appellant and rightly so, the identification by PW1 was dock identification and an identification parade was necessary which could have sent assurance as to the correctness of the perpetrator. As it is now, this court has its own doubts as to the identification of the appellant and the same should be resolved in his favour.
  5. In the premises, I find that the appeal has merits and the same is allowed.
  6. The appellant is hereby set free unless otherwise lawfully held.
  7. It is so ordered.

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


    JOHN KINYUA VS The Republic JOHN KINYUA VS The Republic