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JudgmentMICHAEL KARIUKI VS The Republic15 min read

MICHAEL KARIUKI VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. J.N. Githaiga, RM in the Magistrate’s Court at Siakago Sexual Offence No. E050 of 2023 delivered on 13th March, 2024)


  1. The appellant herein was charged with the offence of defilement contrary to section 8(1&3) of the Sexual Offences Act No. 3 of 2006. Particulars are that on diverse dated between 23rd October 2023 and 26th October 2023 at Kianjiru location, Mbeere South subcounty within Embu County, the appellant intentionally and unlawfully inserted his penis into the vagina of J.W.W. a girl aged 13 years. The alternative charge was committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006, whose particulars are that on diverse dated between 23rd October 2023 and 26th October 2023 at Kianjiru location, Mbeere South subcounty within Embu County, the appellant intentionally and unlawfully touched the vagina of J.W.W. a girl aged 13 years with his penis. 
  2. At the trial, the appellant pleaded ‘not guilty’ to the charge and was subsequently convicted and sentenced to 20 years imprisonment.
  3. The appellant, being dissatisfied with the decision of the trial court, filed a petition of appeal dated 25th March 2024 seeking the following orders:
    1. This appeal be allowed;
    2. This honourable court does proceed to set aside the conviction and sentence of the trial court; and
    3. In the alternative, the honourable court be pleased to order retrial of the case to afford the appellant adequate defense.
  4. The appeal is premised on the grounds that the learned trial magistrate erred in both law and fact:
    1. In denying the appellant’s counsel’s application for an adjournment to allow him time to adequately prepare for the defense of the accused;
    2. In making a finding that defilement was proved beyond reasonable doubt despite the fact that the medical evidence on record does not support such a finding;
    3. In making a finding that the complainant’s age was proved beyond reasonable doubt despite the fact that the age assessment report had apparent errors;
    4. By misinterpreting the defense put forth by the appellant as an admission of guilt; and
    5. In failing to consider the defense put forth by the appellant on the basis of a balance of probabilities.
  5. A summary of the evidence adduced at the trial is as follows: PW1 was Judy Ireri, a Clinical officer at Kiritiri Health Center. She stated that when she examined the complainant, she observed that the hymen was missing as a result of penile penetration. That there was a whitish vaginal discharge and a high vaginal swab showed that there were pus cells present. All other genitalia were normal and the complainant was treated with emergency contraceptives and STI treatment. She testified that age assessment was conducted and the report shows that the minor was 13 years old at the time of examination.
  6. She produced the P3 and PRC forms and the age assessment report. On cross-examination, she stated that the accused person was not examined and that the urine analysis gave results consistent with someone who had recently engaged in sexual activity through presence of an infection or spermatozoa cells. That the complainant reported that she had stayed at the home of the appellant for 4 days before examination.
  7. PW2 was JW, a minor, who gave sworn evidence following voire dire. She stated that she had gone to her father’s place to make arrangements to procure her birth certificate. That while there, her aunt took her to the home of the appellant who expressed that he wanted to talk to her on her aunt’s phone later. That later, he started sending SMS’s to her aunt thinking that he was talking to her but her aunt engaged him in the chat in which he said that he loves her (PW2) and would like to meet up. That she was not able to meet that time but she met the appellant in February 2023 and he bought her a phone which was delivered to her through her aunt. That within the same month, he picked her from her home in Mwea and on another occasion, he sent her fare through a motorcycle rider’s phone and then he escorted her back home.
  8. She stated that before he sent her fare, they were talking on the phone which he had bought for her. That the appellant used to talk to her on the phone often and when they met, he would take her to his house, cook for her and then have sex with her. This happened severally since march 2023. It was her testimony that her mother took the phone away and she would borrow a phone to speak to the appellant whenever necessary. She stated that on 22nd October 2023, she left church with her friends and spent the night at her friend’s house. That she used someone’s phone to call the appellant who told her to visit him. That the next morning at 9AM, she and her friend took a bodaboda and the appellant paid Kshs.800/= to be transported to Makima from where they walked to the appellant’s home and they arrived at 2PM.
  9. That they waited for him and he arrived home at 8PM and cooked for them before he took her to his bedroom while her friend slept on the couch. That the appellant forced her to remove her clothes and he had sex with her that night. She stated that the events of that night were the same until 26th October 2023 and that the appellant would have sex with her several times. That on 26th October 2023 at around 11PM, the sub-chief called Munyiri knocked on the door and enquired what the girls were doing there and they said that they had gone to visit her aunt.
  10. That they were rounded up by police and taken to the police station where they recorded statements before being taken to the hospital for examination. She narrated that on 19th November 2023, she reached out to the appellant to send her some money and the appellant tried to convince her to withdraw the charges so that the case could end but she refused. On cross-examination, she stated that the appellant threatened her through her aunt, saying that she should not pursue the case.  She did not know whether her aunt knew that the appellant was having sex with her.
  11. PW3 was Anthony Ngiri Munyiri, chief of Kombo Munyiri sub-location. He stated that on 26th October 2023, the area manager called to inform him that 2 school-going-age children had been seen at the home of the appellant. That he went to the home of the accused in the company of his colleagues and members of Nyumba-kumi vigilance group. That the appellant answered the door and they saw 2 girls inside the house and then he called the OCS Kiritiri to assist. The OCS sent 2 officers and a police motor vehicle and the  appellant and the 2 girls were taken away.
  12. PW4 was Savilio Nyaga Mbogo, the elder of Kanyingi sub-area who stated that some villagers told him that there were 2 school-going-age girls at the appellant’s home and he notified PW3. That they gathered together with some other village elders and they went to the home of the appellant at night and upon enquiring how he is related to the girls, he said that PW2 is her niece. He stated that they were not satisfied with the explanation and they arrested the appellant and the 2 girls and they were taken to the police station.
  13. PW5 was GIM, the complainant’s father, who stated that his daughter was born in 2010. He stated that on 27th October 2023, PW3 told him that his daughter had been arrested while in the company of the appellant. That he went and took her home but he did not ask what had happened to her. On cross-examination, she stated that his sister (the aunt whom PW2 had referred to) is married to the appellant’s brother. That his sister had not informed him that her daughter was involved in sexual relations with the appellant.
  14. PW6 was PC Jeremiah Njeru of Kiritiri Police Station, who stated that he was assigned to investigate the case. That when he took over the matter, the appellant and the complainant were already at the police station. That from his investigations, he established that the appellant had been having sexual relations with the complainant for a period of time while keeping her in his house. He rehashed the facts and stated that the appellant and the complainant were taken to the police station by PW3 and PW4 and the appellant was charged with the offence. That PW2 was examined by PW1 at Kiritiri health center and the outcomes were recorded in the P3 and PRC forms. On cross-examination, he stated that the complainant met the appellant at her father’s home when she had gone to collect a copy of his national ID. That he did not investigate the complainant’s aunt even though she was mentioned severally.
  15. At the close of the prosecution’s case, the trial court placed the appellant on his defense. He gave sworn evidence as DW1 stating that they were friends with PW2 and that her aunt was his neighbor. That PW2 had told him that she was in the area to collect her father’s copy of ID to enable her take her own ID. That between 23rd and 26th October, he confirmed that he had sex with PW1 in his homestead and there was another girl whom he did not know. He stated that when he met PW2, he thought that she was above 18 years old and that she had told him that she was an adult before having sexual relations with her.
  16. On cross-examination, he stated that he was 40 years old and that PW2 appeared like an adult to him. That he started relating with PW2 in a bid to know her better before they started having sex on 23rd October 2023 at his home. That PW2 knew his home because she had visited her aunt who is his neighbor. That PW2 had told her that she needed her father’s ID to enable her to apply for her own and she did not inform him that she was about to sit for her KAPSEA examination. He stated that he lives with his wife but it is a coincidence that PW2 went to his house when his wife was not around. That he had sexual relations with the complainant because she told him that she was an adult.
  17. DW2 was Hellen Murugi who is the appellant’s sister-in-law. She stated that PW2 was born between 2004-2005 and that she was in a relationship with the appellant. On cross-examination, she stated that she is 22 years old but she does not have a national ID.
  18. The trial court considered the evidence adduced and found that the elements of the offence of defilement had been proved beyond reasonable doubt and the appellant was convicted. He was sentenced to 20 years imprisonment, being the minimum sentence prescribed under section 8(3) of the Sexual Offences Act.
  19. This appeal was canvassed by way of written submissions.
  20. It was the appellant’s submission that the trial court erred in failing to grant an adjournment requested by his advocate hence denying him a chance to adequately prepare his defense. He relied on the cases of George Ngodhe Juma, Peter Okoth Olingo, Susan Muthoni Nyoike v. Attorney General (2003) eKLR, Joseph Ngungu Kagiri v. Republic (2016) eKLR and Republic v. Paul Mutuku Magado (2019) eKLR. He questioned the age of PW2, keeping in mind the testimony of DW2 who stated that she was born between 2004-2005.
  21. He stated that the age assessment report is flawed because the assessment is based on the schooling period of the complainant, thus, age was not properly assessed. In that regard, he relied on the case of EK v. Republic (2018) eKLR. It was his argument that the trial court failed to consider his defense where he stated that he reasonably believed that the complainant was in fact an adult and he relied on the case of Wambui v. Republic (2019) KECA 906. It was his case that the elements of the offence were not proved beyond reasonable doubt and he further relied on the case of Martin Charo v. Republic (2016) eKLR, urging the court to allow the appeal.
  22. The respondent, in its submissions, relied on the provisions of section 2 and 8(1) & (3) of the Sexual Offences Act and stated that the prosecution proved all the elements of the offence beyond reasonable doubt. It relied on the case of Hadson Ali Mwachongo v. Republic (2016) eKLR and stated that the victim and her father testified that the minor was born in 2010. Further reliance was placed on the case of Reuben Taabu Anjononi & 2 Others v. Republic (1980) eKLR in support of the argument that there was sufficient evidence to identify the appellant as the victim’s assailant.
  23. On the issue of the trial court’s denial of the defense counsel’s application for adjournment, the respondent submitted that the appellant had been given ample time to find an advocate at a time when the prosecution had availed witnesses and it would have been unconscionable to adjourn the matter. That it was in the best interest of the child that the matter proceeds expeditiously under Article 53 of the Constitution. That the trial magistrate considered the evidence of both parties wholesomely before convicting and sentencing the appellant to a lawful sentence as prescribed in the Act. It urged the court to dismiss the appeal.
  24. The issues for determination are as follows:
    1. Whether the offence was proved beyond reasonable doubt; and
    2. Whether the sentence meted out to the appellant is harsh and excessive.
  25. The appeal herein is to be determined through re-evaluation of the evidence adduced before the trial court. In the case of Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus:

“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence.  The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 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 findings and 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.”

  1. As to whether the offence was proved beyond reasonable doubt, section 8(1) and (3) of the sexual Offences Act provides the elements of the offence as follows:
    1. The age of the complainant- that the complainant was a child;
    2. Penetration as defined under section 2(1) of the Sexual Offences Act happened to the child;
    3. The perpetrator was positively identified.
  2. The age assessment report dated 27th October 2023 from Kiritiri Health Center shows that the complainant was 13 years old at the time. It stated that all the age parameters were observed in order to arrive at the conclusion. This is sufficient proof of the complainant’s age. In the case of Alfayo Gombe Okello v. Republic Cr App No 203 of 2009 (Kisumu), the court stated as follows;

“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).?”

  1. The element of penetration was proved through the testimony of PW1 which corroborated that of PW2, the victim. PW2 stated that when she met with the appellant and he wanted to have sex with her, she resisted but he forced her to undress and he had his way with her. PW1 testified that upon examination, the victim’s hymen was broken through penile penetration and there were signs of sexual activity. This is sufficient proof of penetration.
  2. On the identity of the assailant, PW2 stated that the appellant is known to her and she knew him through DW2, his sister-in-law. She testified that the appellant was her boyfriend and they had sexual relations severally. In his testimony, the appellant himself stated that indeed he had sexual relations with PW2 but he was under the impression that she was an adult. That being the case, there is no doubt as to identification of the assailant. Regarding the appellant’s defense, section 8(5)&(6) of the Sexual Offences Act provides:

“It is a defence to a charge under this section if-

(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and

(b) the accused reasonably believed that the child was over the age of eighteen years.

(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”

  1. DW1 testified that PW2 told him that she was in Mwea to pick her father’s ID to facilitate her to acquire her own ID. That when the appellant began relating with her, he was under the impression that PW2 was an adult and that she was in the process of applying for her ID. Section 8(6) of the Act provides that where the victim made the appellant believe that she was of age, he should provide proof that he took steps towards ascertaining the age of the victim. This provision is necessary because a minor does not have capacity to consent to sexual activity even though she ‘looked’ like an adult.
  2. In this case, both the appellant and the victim stated that they were in a relationship with each other. In my view, the appellant did not pay attention to the fact that the victim was a minor at the time of the offence. In fact, PW2 testified that she told him that she was preparing for her grade 6 KAPSEA national examination, a fact disputed by the appellant, but this did not stop him from having sex with her. The defense of DW1 under section 8(5) of the Act does not hold water since the standard for attaining that defense is already set and the appellant did not satisfy it. DW2 did not do much to help the defense since she only disputed the victim’s age stating that she was born between 2004-2005.
  3. The final issue is whether the sentence meted out to the appellant is excessive in the circumstances. The sentence is prescribed under section 8(3) of the Sexual Offences Act and the court applied it as is. The supreme court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) stated that for as long as the sentences prescribed under section 8 of the Sexual Offences Act remain undisturbed/constitutionally sound, the mandatory sentences ought to be applied as prescribed. It stated:

“[66] We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious.”

Bearing this in mind, I find that the sentence imposed by the trial court is lawful and need not be disturbed by the court.

  1. I do note the appellant’s contention that the trial court declined to grant an adjournment which would have helped him to prepare his defence better. The trial court gave that ruling on 23rd November 2023 and the appellant had the right to appeal against it which he did not exercise. To bring the issue in this appeal is to stretch his lack a bit too far.  Therefore, that ground of appeal fails.
  2. For the foregoing reasons, the appeal herein lacks merit and the same is hereby dismissed.
  3. It is so ordered.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    MICHAEL KARIUKI VS The Republic MICHAEL KARIUKI VS The Republic