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JudgmentJOSPHAT NYAGA MBITHI VS The Republic6 min read

JOSPHAT NYAGA MBITHI 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. E044 of 2022 Delivered on 1st February, 2024)


  1. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8 (2) of the Sexual Offences Act No.3 of 2006. The particulars were that on the 6th day of October, 2022 at Kariru area in Mbeere North Sub County within Embu County, he intentionally and unlawfully caused his genital organ namely Penis to penetrate the genital organ namely vagina of E.W.W a girl child aged 2 yeas and 7 months.  He also faced an alternative charge of committing an indecent Act with a child, the particulars being the same.
  2. The matter proceeded to full hearing with the mother to the complainant, Agnes Wanjeru Njeru testifying as PW1.  She stated that her daughter was born on the 20th January, 2020.  That on the 06/10/2022 at around 3.00p.m she had given the appellant casual work in her house to build a chicken pen, and he worked for her for 2 days.  That on the third day, she left him still building the chicken pen and took lunch for her other children at Muguyo Junior Academy.  That she told the accused to remain with E.N.W since the sun was hot.  It took her a while to come back home and her other children came back home before herself.  That on her way she met the appellant and paid him 200/- and when she reached home, E.N.W tried to tell her something but she could not understand.
  3. That the complainant ran to her and told her that the appellant had put something inside her private parts and that E.N.W kept telling her the same thing over and over again.  That on the 09/10/2022 E.N.W fell very sick, woke up in the morning and she stood with her legs apart and she started screaming and crying.  That she urinated on herself and continued to cry and scream.  She removed her trousers and checked her private parts and it was red.  This is when she realized the minor was telling her that the appellant had injured her private parts.  She reported the matter at Siakago Police Station and she took the minor to Siakago Level (4) Hospital and she was treated.
  4. On cross examination, she stated that the minor told her that the appellant hurt her private parts.  She denied owing the appellant any money and stated that she used to pay him every day.
  5. PW2 was E.N a three-year-old minor.  She stated that she knows the appellant and that she calls him “OMAU” meaning grandfather. That the appellant was building a Chicken Pen for them and he injured her “dudu” (as she pointed at her private parts).  She stated that the appellant put something in her “dudu” after he had taken her behind the bathroom and he hurt her “dudu”.  That the appellant removed her panty and tights.  That she told her mother that she felt pain and she identified the appellant in Court.
  6. PW3 was John Mwangi, a Clinical Officer at Siakago District Hospital who stated that he examined the minor who complained of having been defiled by someone known to her on the 06/10/2022 at around 3.00 p.m.  That on vaginal examination, she had pus-like vaginal discharge and the hymen was perforated with a perennial tear.  His conclusion was that there was vaginal penetration evidenced by fresh broken hymen and perennial tear.
  7. PW4 was P.C Naleah Marenga who stated that, on the 09/10/2022 A.W went to the station with her three-year-old daughter and reported that her daughter had been defiled by a man known as Josphat Nyaga Mbithi who she had given work to build a chicken pen.  That on 06/10/2022 she left her daughter with the appellant and went to take food for her other children in school and in the evening, the minor told her that she had pains in her private parts and when the mother examined her, she saw pus oozing from her private parts.  She took PW2 to Siakago District Hospital for examination and treatment.  That the accused was arrested and charged with defilement.
  8. When the appellant was placed on his defence, he gave unsworn evidence and stated that he was implicated by the mother to the complainant because she refused to pay his money.
  9. The appellant was found guilty and convicted and sentenced to life imprisonment.  Being dissatisfied with both the conviction and the sentence, he filed the petition of appeal dated the 17th day of April, 2024 in which he prayed that his appeal be allowed, conviction be quashed and the sentence be set aside. The following are the grounds of appeal;
  10. The learned magistrate erred in law and in fact by disregarding the appellant’s defence without giving cogent reasons.
  11. The learned magistrate erred in law and if fact by failing to consider the appellant’s mitigation.
  12. The appeal was disposed of by way of written submissions which this Court has duly considered.  From the evidence on record and the submissions, the issues for determination are
  13. Whether the prosecution proved its case against the appellant beyond reasonable doubt.
  14. Whether the sentence is harsh and excessive.
  15. The appellant was charged with the offence of defilement contrary to Section 8(1) and 8(2) of the sexual offences Act No. 3 of 2006.  The ingredients of the offence of defilement were laid down in the case of Simiyu & Another Vs. R (2005) eKLR as follows:
  16. Proof of penetration
  17. Age of the complainant -Proof that she was a minor.
  18. Positive identification of the assailant
  19. On whether there was penetration, penetration is defined in section 2 (1) of the Sexual Offences Act as the Partial or complete insertion of a person’s genital organs into the genital organs of another person. It can be proved not only by medical evidence but also by oral evidence of the complainant. This was the holding in the case of AML Vs. Republic (2012) eKLR.  In her evidence, PW1 told the Court that she left the complainant with the appellant at her home and went to take food to her other children in school.  That when she came back the minor tried to tell her something but she could not understand.  She ran to her and told her that the appellant had put something inside her private parts and she kept telling her mother the same thing.  On the 09/10/2022 in the morning she fell very sick and when she woke up she stood with her legs apart and started screaming and crying.  She urinated on herself and when her mother checked her private parts, she found a lot of pus oozing from her private parts.  She took her to hospital and the doctor confirmed that she was defiled.  The element of penetration was therefore proven.
  20. On whether the complainant was a minor, PW1 stated that she was 3 years old when the incident happened.  Her birth certificate was produced as an exhibit which shows that she was born on the 20/01/2020.  The age was therefore sufficiently proven.
  21. On the identification of the appellant, the minor was able to identify the appellant.  She said it was “Omau” meaning grandfather who had injured her “dudu” and she pointed at the appellant in the dock.  The mother to the complainant stated that she left her with the appellant as she went to take food to her other children in school and when she returned the complainant tried to tell her something and it was not until the 09/10/2022 when the minor got very sick that she discovered that the minor had been defiled by the appellant and she figured out that it was what the minor had been trying to tell her.  The appellant was properly identified and his was a case of recognition as he was a person well known to PW1 and also by the complainant (PW2).
  22. On the sentence, the same is discretionary and an appellate Court would only interfere with it, if it is demonstrated that there was an error of principle on the part of the trial court or the same was excessive and disproportionate. This was laid down in the Case of Shadrack Kipchoge Kugo Vs. R eKLR.
  23. The appellant was convicted under section 8(2) of the Sexual Offences Act which Stipulates a minimum mandatory sentence of life imprisonment.  The sentence passed by the trial Court is what is provided in the law and it is the only sentence.
  24. In view of the foregoing, I find that the appeal has no merits both on the conviction and sentence, and it is hereby dismissed.
  25. It is so ordered.

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


    JOSPHAT NYAGA MBITHI VS The Republic JOSPHAT NYAGA MBITHI VS The Republic