1. Joseph Ngigi Mungai alias Watene Mathenge, the appellant herein, was convicted of the offence of defilement of a girl contrary to section 8 (2) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence were that on diverse dates between January 2022 and May 2023, at Wanjohi area village in Kipipiri sub county within Nyandarua County, intentionally caused his penis to penetrate the anus and the vagina of S.W.W., a child aged five years.
3. The appellant was sentenced to serve life imprisonment. He has appealed against both conviction and sentence. He was in person. He raised the following grounds of appeal:
a) The learned trial magistrate erred in law and fact by convicting the appellant, yet failed to find that the ingredients of the offence were not fully proved as required by the law.
b) The learned magistrate erred in law and fact by conducting the trial in a manner that contravened articles 25, 27, 28, 50 (2) (C) (K) & (P) of the Constitution of Kenya 2010.
c) The learned trial magistrate erred in law and fact by awarding a sentence that is not only harsh but also excessive.
d) The learned trial magistrate erred in law and fact by convicting the appellant, yet failed to find that there existed a grudge between PW2 and the appellant.
e) The learned trial magistrate erred in law and fact by convicting the appellant, yet failed to consider the appellant’s defence.
f) The learned trial magistrate erred in law and fact by sentencing the appellant to a minimum mandatory sentence that is contrary to Article 25, 27, 28, 50 (2) (C) (K) & (P) of the Constitution of Kenya 2010.
4. The state opposed the appeal through Odera Vena, learned counsel, because:
a) There was sufficient evidence that proved the charge to the required standards.
b) The sentence was not excessive.
5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, keeping in mind that I did not witness any of the witnesses give their testimonies. Therefore, I will follow the well-known case of Okeno vs Republic [1972] E. A 32 to guide my decision-making process.
6. Section 8(1) of the Sexual Offences Act defines defilement in the following terms:
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
An offence of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator, and;
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR when Joel Ngugi J. said:
Going by this definition of defilement, I agree with Mr. Mwenda on the issues the court needs to determine. 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.
These are the ingredients that the prosecution must prove against an accused person.
7. The copy of the birth certificate produced as an exhibit indicates that S.W.W. was born on December 21, 2017. As of January 2022, she was 4 years and 11 months old. The victim's age was proven to meet the required standards.
8. One must logically evaluate the evidence before applying the law to the facts. Logicism existed before the law. In essence, logic offers tools and a framework for reasoning. In the instant case, I will attempt to introduce logic in the evidence tendered by the prosecution before subjecting it to the law. I will start by looking at what S.W.W. (PW1) testified to. At the time of the alleged offence, she had not attained five years. This is what she told the trial court:
I go to school at Ngumo Primary, and our home is Kirima, where I stay with Shosho, mum, and Njuguna. My mother is Elizabeth Wambui. Baba Watene did bad manners to me as he is baba Watene and currently we are living together but we sued to stay with him when he did a bad manners to me on the seat and the bed and he strangled me and he did it on my private parts (points at the vagina) and my anus and he removed this thing (points at private parts) and he put into my mouth saying I swallow it. I was at home where we are staying with mom and at that time my mum was away at the shop. He told me that first, I do bad manners, after which he gave me a cake.
He has done bad manners to me many times. At another time mum was sick and in hospital while grandmother was in the shamba. I told my mother when we were going to hospital as I had pain in my stomach and at the anus (point out) I have seen Baba Watene as he was sat in open court and he is the one appearing on the screen (points out)
I did not tell mother as Baba Watene said I should not tell anyone as he will kill me and that I do not inform Njuguna or anyone and that he will kill me.
Mum had asked me to wash my legs and she came and became shocked seeing my anus hence she took me to the hospital. Baba Watene is the accused herein (points out)
I still feel pain in my stomach and behind (points at anus) and I have bene taken to hospital severally. Mother also took me to the police and many hospitals. The thing he inserted into my anus and vagina and mouth (points out) he removed from his body (points at private parts and it looked like a stick and he told me to swallow it. What I have informed the court is what happened.
9. At a glance, this is very disturbing evidence. For a child of this age, when she talks of several defilement instances, one wonders why there were no tell-tale signs. These signs could not have escaped notice of those who stayed with her.
10. Her evidence vaguely identifies the location of the defilement. It does not clearly state whether it was at the appellant’s or their family's house when the appellant was cohabiting with her mother. I will revert to this issue later.
11. The third issue that an observer notices is that she discusses her stomach pain much later in her evidence. It would have been expected for her to testify that, during the act of defilement, she felt significant pain in her genitalia and anus. In the case of Ben Maina Mwangi v Republic [2006] eKLR Lesiit, J. (as she then was) observed:
Bearing in mind she was a child of tender years being only 4 years at the time, for the offence to be proved there should have been evidence adduced to show that the Appellant used some force on her or something tending to show an assault or infliction of pain. At least some evidence needed to be adduced from which it could be construed that defilement took place. Considering the Complainant’s age as compared to the Appellant, if any attempt were made to penetrate the Complainant’s private parts it would be expected that the Complainant must have felt pain, if not excruciating pain. There is no way the Complainant would forget the experience or that detail in her evidence.
12. In this case, I would have expected evidence of pain, as explained by the learned judge in Ben Maina Mwangi (supra).
13. E.W. (PW2) is the complainant’s mother. She testified that she separated from the appellant in 2022, having married in 2021. After the separation, she went with her children to stay with her mother in Rayeta. On 20th June 2023, she realised that the child was experiencing a problem. She reported the matter, leading to the appellant's arrest and charge. If the complainant had remained apart from the appellant, I would have expected evidence of opportunity for the appellant to defile the complainant. This was not presented.
14. Although PC Kendi Moles (PW3) testified that the incident occurred in the house on a sofa, it was anticipated that this evidence should have come from the complainant or her mother. PC Kendi (PW3) presented some evidence that casts doubt on the credibility of the complainant’s testimony. While the complainant stated that the appellant defiled her on the seat and the bed, the evidence provided by PC Kendi, which is attributed to her, is as follows:
The victim S.W.W aged five years old and she stated that the past year in 2022 on diverse dated and months she should not recall, she was sat at the sofa set in the sitting room taking a cake and the father joined her later and after she ate the father lowered her trouser from the waist downward while using force as the child resisted and he defiled the child both on vaginal and anal part and forced the child to suck his penis.
After that he threatened the child saying he will killer using a stick. She states the behavior was in different occasions while the mother was away wither at the hospital or market. On many times she wanted to inform her mother but was in fear.
In May 2023 0n unknow date she said she was alone in the house when she heard someone call her form the fence sand on peeping found it was the father who had a cake on his hands and he asked the girl to go for the cake which she did, That he held her hand by force and walked her behind a route at Wanjohi Police Post which has a land with grass and some trees and then laid her forcefully on the ground, removed her lower part clothes and defiled her through the anal and vaginal area and again repeated hat she sucks his private parts. She said she tried to scream about the father also threatened her reminding he that he could kill her. He told her into inform the mother and grandmother about the offence and that if she does, he will do a bad thing to her and will kill her.
15. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
16. This is how the evidence of the complaint ought to be treated.
17. Joseph Ngigi Mungai, alias Watene Mathenge, the appellant, contended that he married the complainant’s mother and separated from her in May 2021. In April 2022, he remarried. When they separated, she warned him that he would regret it.
18. When the appellant raised this defence, the learned trial magistrate ought to have addressed this issue in conjunction with the evidence on record.
19. The complainant’s mother talked about their differences, and one could not help but read bitterness.
20. The prosecution submitted a general outpatient record of the complainant from J.M. Kariuki Memorial Hospital (P Exhibit 2). On the first page, the medic noted that the complainant had childhood constipation on June 20, 2023. The review report conducted on 25th June 2023 introduced the concept of defilement. Curiously, the review referenced treatment at Nakuru PGH, where observations regarding the tear on the vagina were made. Two different officers made the notes for June 20, 2023, and the review was on the 25th of June 2023. It was imperative for the prosecution to summon the two officers and the person who attended to the complainant at Nakuru PGH to explain the discrepancies. This failure was fatal to the prosecution's case.
21. The upshot of the preceding analysis of the evidence is that the conviction was unsafe. I quash the conviction, set aside the sentence, and set the appellant at liberty unless lawfully held.
Delivered and signed at Nyandarua this 23rd day of June 2025
2. The particulars of the offence were that on diverse dates between January 2022 and May 2023, at Wanjohi area village in Kipipiri sub county within Nyandarua County, intentionally caused his penis to penetrate the anus and the vagina of S.W.W., a child aged five years.
3. The appellant was sentenced to serve life imprisonment. He has appealed against both conviction and sentence. He was in person. He raised the following grounds of appeal:
a) The learned trial magistrate erred in law and fact by convicting the appellant, yet failed to find that the ingredients of the offence were not fully proved as required by the law.
b) The learned magistrate erred in law and fact by conducting the trial in a manner that contravened articles 25, 27, 28, 50 (2) (C) (K) & (P) of the Constitution of Kenya 2010.
c) The learned trial magistrate erred in law and fact by awarding a sentence that is not only harsh but also excessive.
d) The learned trial magistrate erred in law and fact by convicting the appellant, yet failed to find that there existed a grudge between PW2 and the appellant.
e) The learned trial magistrate erred in law and fact by convicting the appellant, yet failed to consider the appellant’s defence.
f) The learned trial magistrate erred in law and fact by sentencing the appellant to a minimum mandatory sentence that is contrary to Article 25, 27, 28, 50 (2) (C) (K) & (P) of the Constitution of Kenya 2010.
4. The state opposed the appeal through Odera Vena, learned counsel, because:
a) There was sufficient evidence that proved the charge to the required standards.
b) The sentence was not excessive.
5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, keeping in mind that I did not witness any of the witnesses give their testimonies. Therefore, I will follow the well-known case of Okeno vs Republic [1972] E. A 32 to guide my decision-making process.
6. Section 8(1) of the Sexual Offences Act defines defilement in the following terms:
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
An offence of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator, and;
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR when Joel Ngugi J. said:
Going by this definition of defilement, I agree with Mr. Mwenda on the issues the court needs to determine. 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.
These are the ingredients that the prosecution must prove against an accused person.
7. The copy of the birth certificate produced as an exhibit indicates that S.W.W. was born on December 21, 2017. As of January 2022, she was 4 years and 11 months old. The victim's age was proven to meet the required standards.
8. One must logically evaluate the evidence before applying the law to the facts. Logicism existed before the law. In essence, logic offers tools and a framework for reasoning. In the instant case, I will attempt to introduce logic in the evidence tendered by the prosecution before subjecting it to the law. I will start by looking at what S.W.W. (PW1) testified to. At the time of the alleged offence, she had not attained five years. This is what she told the trial court:
I go to school at Ngumo Primary, and our home is Kirima, where I stay with Shosho, mum, and Njuguna. My mother is Elizabeth Wambui. Baba Watene did bad manners to me as he is baba Watene and currently we are living together but we sued to stay with him when he did a bad manners to me on the seat and the bed and he strangled me and he did it on my private parts (points at the vagina) and my anus and he removed this thing (points at private parts) and he put into my mouth saying I swallow it. I was at home where we are staying with mom and at that time my mum was away at the shop. He told me that first, I do bad manners, after which he gave me a cake.
He has done bad manners to me many times. At another time mum was sick and in hospital while grandmother was in the shamba. I told my mother when we were going to hospital as I had pain in my stomach and at the anus (point out) I have seen Baba Watene as he was sat in open court and he is the one appearing on the screen (points out)
I did not tell mother as Baba Watene said I should not tell anyone as he will kill me and that I do not inform Njuguna or anyone and that he will kill me.
Mum had asked me to wash my legs and she came and became shocked seeing my anus hence she took me to the hospital. Baba Watene is the accused herein (points out)
I still feel pain in my stomach and behind (points at anus) and I have bene taken to hospital severally. Mother also took me to the police and many hospitals. The thing he inserted into my anus and vagina and mouth (points out) he removed from his body (points at private parts and it looked like a stick and he told me to swallow it. What I have informed the court is what happened.
9. At a glance, this is very disturbing evidence. For a child of this age, when she talks of several defilement instances, one wonders why there were no tell-tale signs. These signs could not have escaped notice of those who stayed with her.
10. Her evidence vaguely identifies the location of the defilement. It does not clearly state whether it was at the appellant’s or their family's house when the appellant was cohabiting with her mother. I will revert to this issue later.
11. The third issue that an observer notices is that she discusses her stomach pain much later in her evidence. It would have been expected for her to testify that, during the act of defilement, she felt significant pain in her genitalia and anus. In the case of Ben Maina Mwangi v Republic [2006] eKLR Lesiit, J. (as she then was) observed:
Bearing in mind she was a child of tender years being only 4 years at the time, for the offence to be proved there should have been evidence adduced to show that the Appellant used some force on her or something tending to show an assault or infliction of pain. At least some evidence needed to be adduced from which it could be construed that defilement took place. Considering the Complainant’s age as compared to the Appellant, if any attempt were made to penetrate the Complainant’s private parts it would be expected that the Complainant must have felt pain, if not excruciating pain. There is no way the Complainant would forget the experience or that detail in her evidence.
12. In this case, I would have expected evidence of pain, as explained by the learned judge in Ben Maina Mwangi (supra).
13. E.W. (PW2) is the complainant’s mother. She testified that she separated from the appellant in 2022, having married in 2021. After the separation, she went with her children to stay with her mother in Rayeta. On 20th June 2023, she realised that the child was experiencing a problem. She reported the matter, leading to the appellant's arrest and charge. If the complainant had remained apart from the appellant, I would have expected evidence of opportunity for the appellant to defile the complainant. This was not presented.
14. Although PC Kendi Moles (PW3) testified that the incident occurred in the house on a sofa, it was anticipated that this evidence should have come from the complainant or her mother. PC Kendi (PW3) presented some evidence that casts doubt on the credibility of the complainant’s testimony. While the complainant stated that the appellant defiled her on the seat and the bed, the evidence provided by PC Kendi, which is attributed to her, is as follows:
The victim S.W.W aged five years old and she stated that the past year in 2022 on diverse dated and months she should not recall, she was sat at the sofa set in the sitting room taking a cake and the father joined her later and after she ate the father lowered her trouser from the waist downward while using force as the child resisted and he defiled the child both on vaginal and anal part and forced the child to suck his penis.
After that he threatened the child saying he will killer using a stick. She states the behavior was in different occasions while the mother was away wither at the hospital or market. On many times she wanted to inform her mother but was in fear.
In May 2023 0n unknow date she said she was alone in the house when she heard someone call her form the fence sand on peeping found it was the father who had a cake on his hands and he asked the girl to go for the cake which she did, That he held her hand by force and walked her behind a route at Wanjohi Police Post which has a land with grass and some trees and then laid her forcefully on the ground, removed her lower part clothes and defiled her through the anal and vaginal area and again repeated hat she sucks his private parts. She said she tried to scream about the father also threatened her reminding he that he could kill her. He told her into inform the mother and grandmother about the offence and that if she does, he will do a bad thing to her and will kill her.
15. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
16. This is how the evidence of the complaint ought to be treated.
17. Joseph Ngigi Mungai, alias Watene Mathenge, the appellant, contended that he married the complainant’s mother and separated from her in May 2021. In April 2022, he remarried. When they separated, she warned him that he would regret it.
18. When the appellant raised this defence, the learned trial magistrate ought to have addressed this issue in conjunction with the evidence on record.
19. The complainant’s mother talked about their differences, and one could not help but read bitterness.
20. The prosecution submitted a general outpatient record of the complainant from J.M. Kariuki Memorial Hospital (P Exhibit 2). On the first page, the medic noted that the complainant had childhood constipation on June 20, 2023. The review report conducted on 25th June 2023 introduced the concept of defilement. Curiously, the review referenced treatment at Nakuru PGH, where observations regarding the tear on the vagina were made. Two different officers made the notes for June 20, 2023, and the review was on the 25th of June 2023. It was imperative for the prosecution to summon the two officers and the person who attended to the complainant at Nakuru PGH to explain the discrepancies. This failure was fatal to the prosecution's case.
21. The upshot of the preceding analysis of the evidence is that the conviction was unsafe. I quash the conviction, set aside the sentence, and set the appellant at liberty unless lawfully held.
Delivered and signed at Nyandarua this 23rd day of June 2025