REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA E019 OF 2023
REPUBLIC ….…………………………………………… PROSECUTION
VERSUS
YONAH PATRICK MUTUKU ………………..……..…………APPELLANT
JUDGMENT
1. The appellant was charged with Incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006.
2. I t was alleged that on 27/8/2020 at Makusu Village, Nguumo Location Makindu Subcounty Makueni County he unlawfully and intentionally penetrated the anus of EWW with his penis, who was to his knowledge his son age 3 months.
3. In the alternative he was charged with committing an indecent Act with a child contrary to section 11(1) of the same Act - that on the same day, time and place he touched the anus of EW a child aged 3 months old with his penis.
4. He was charged with a 2 nd count of assault causing actual bodily harm contrary 251 of the Penal Code. It was alleged that on 27/8/2020 at the same village, Location,Subcounty and County he assaulted Emmanuel Wambua occasioning him actual bodily harm.
5. The accused pleaded guilty to the charge the 1 st time he came to court - (1/9/2020) the court noted that he appeared confused and sent him for mental health check-up - On 10/9/2020 the report came back that he was fit to plead. He pleaded not guilty to all the counts.
6. The prosecution called 4 witnesses.
7. The case for the prosecution was that the appellant and PW1 the mother of EW were married since 2017. They had 2 children – the 1 st one aged 2½ years, and the victim herein aged 3 months old.
8. The PW1 told the court her husband had the habit of mistreating the baby and had bitten his ears and the neck.
9. On 27/8/2020 she left home for the market and left her husband with the child. When she came home, she saw that the child had injuries on the tongue and his eyes were swollen. That night, while they were sleeping appellant took the child out and defiled him in the anus. When she woke up she reported to the chief, and the child was treated at Makindu hospital. The village elder PW2 confirmed that she received PW1 - at 7.00am on 28/8/2020 and her child who had injuries on the ears and anus. She looked at the child and the mother told her it was the child’s father who had defiled the child. The chief instructed her to have the appellant arrested immediately and the child taken to hospital.
10. PW3 the Investigating officer NO. 61535 CPL Stephen Muriithi received the complainant and the village elder at the police station Kiundwani. He saw the child had injuries on ears, nose, and right side of head. That when the child was taken to hospital - the doctor confirmed that the child had been defiled. The Investigating Officer produced the clinic card for EW which showed that he was born on 25/5/2020.
11. Dr. Mbugua Nicholas testified that he had graduated from the University of Nairobi in 2007 with Bachelor’s degree in Medicine and surgery. That he filled the P3 for EW on 3/3/2021. That the child had history of defilement’s assault. He testified that the child had bite marks on ear, right shoulder and neck, healing scars on both knees, - the anus was loose - cracks at 12 -6 O’clock with pus oozing from the anus. He was admitted in hospital. The stitching was done on the anus. The clinical assessment was sodomy. He produced the P3, and the Post Rape Care Form that was filled on 28/8/2020.
12. Put on his defence the appellant opted to say nothing, leaving it to court to make its decision.
13. Vide judgement delivered on 21/12/2022 the appellant was found guilty of count 1 and 2, he was convicted and sentenced to life imprisonment on count 1 and 2 years imprisonment on court 2.
14. The appellant was aggrieved by both the conviction and sentence and filed this appeal.
15. Vide submissions filed on 6/7/2023 the appellant amended his grounds of appeal to 2 main ones:-
1) That the evidence led by the prosecution lacked credibility
2) That the sentence was too harsh; excessive .
16. In addition, he set out some mitigating factors- that he is a family man, the only breadwinner of the family.
17. He relies on State vs Oscar Pistorius (No citation) on the purpose of punishment – retribution, prevention, rehabilitation and cites Sonu & Another (2) Sack 248(SCA) that at para 30 the court stated that sentencing is about balance and proportion – the crime, the offender, the interest of society. He seeks leniency & refers to the Sentencing Policy Guidelines & Misc. Criminal No. 45 /2018 – Nakuru on the application of sentencing policing guidelines. He seeks that the appeal be allowed, that he gets a lesser sentence or noncustodial sentence on an acquittal.
18. For the respondent- it is submitted that the duty of the 1 st appellate court is set out in Okeno Vs [1972] EA 32 - That the court re-examines the evidence on record afresh - draws its own conclusions always alive to the fact that it never saw nor heard the witnesses.
19. This re-examination must be exhaustive.
20. It is submitted that the age of the victim was proved vide the clinic card. That penetration was proved by the mother and the doctor and that there was corroboration. That the sentence is lawful and justified.
21. I have carefully considered the record, the submissions. It is clear that the only issue is whether the appeal has merit. Whether the prosecution proved the charges against the appellant, whether the sentence is harsh.
22. On the charge of assault there was evidence from the mother, the village elder, the police officer that the child had visible injuries and the healing scars on the knees. The PRC and the P3 clearly documented these injuries. The mother of the child testified on how the child sustained the injuries and the said evidence stands unchallenged. It was credible and corroborated hence on the charge of assault - the evidence on record proves the charge .
23. Regarding t the sentence s. 251 of the Penal Code states;
Assault causing actual bodily harm Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.
24. The sentence of 2 years imprisonment was there for reasonable.
25. On the incest charge - the prosecution in expected to establish age, relationship with the accused, penetration.
26. The child’s age was proved. It is not in dispute that the child was the child of the accused Patrick Mutuku and PW1 - that is indicated in the clinic card - the fact that accused and PW1 were married and had children was also confirmed by PW2 - the village elder – hence the relationship with the child is not in dispute - and was established by the prosecution.
27. On penetration - the child had injuries on the anus. The mother, PW2 – suspected defilement. The PRC indicated that the child had to be admitted in hospital for the anal tissues to be sutured.
28. Penetration is defined in the Sexual offences Act
penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
29. Meaning that the penetration need not be complete and could be partial. In this case the mother’s testimony, the testimony of the doctor and the medical notes all point to the defilement of the child. The anal orifice had to be sutured. The only person who was left with the child was the appellant and it is after he took the child out at night that the next time the mother noted the said injuries. The evidence before the trial court was sufficient that the child had been defiled, and the perpetrator was the child’s father.
30. It is evident from the record that following the incident the appellant appeared confused and the court had to send him for amental health examination. It however indicated that he was well enough to plead and to stand trial. The apparent confusion could have been the outcome of the realization of what he had done.
31. In the circumstances I found no reason to interfere with the finding of the trial court on penetration and the perpetrator.
32. Regarding the sentence s . 20 of the Sexual Offences Act state s : Incest by male persons
(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person
33. The child herein was male. The law refuses to acknowledge the defilement of a boy by the parent to be incest and creates the offence in relation to the child of the opposite sex to the relative involved. This is so despite the definition by the Act , of the act the cause penetration and the anus , as a genital organ:
"genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus;
34. The court has to read s. 20 with s. 8(1) as read with s. 8(2) of the Act which states:
8. Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
35. In the circumstances the court did not have discretion in the sentence. Previously before the Supreme Court’s directions in Muruatetu 2 there was the application of Muruatetu 1 whereby the courts applied the principle that minimum mandatory sentences took away the discretion of the court denying it the opportunity to consider the circumstances of the offence and to determine the appropriate sentence.
36. Even through the Sexual Offences Act states at. S 33
Evidence of surrounding circumstances and impact of sexual offence
Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove-
(a) whether a sexual offence is likely to have been committed—
(i) towards or in connection with the person concerned;
(ii) under coercive circumstances referred to in section 43; and (b) for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned.
37. Courts are bound by the mandatory minimum sentences.
38. The trial court and this court’s hands are tied by the law.
39. The Supreme Court stated that it was up to Parliament to determine the number of years that constitute a life sentence.
40. In the circumstances I find that the appeal is not merited. The conviction and sentence are sustained.
41. Right of appeal explained.
JUDGMENT Dated, signed and delivered virtually this 5 th March 2026
Mumbua T Matheka
Judge
CA Mwiw’a
Appellant present virtually
JUDGMENT HCCRA E019 OF 2023 Page 11 of 11
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA E019 OF 2023
REPUBLIC ….…………………………………………… PROSECUTION
VERSUS
YONAH PATRICK MUTUKU ………………..……..…………APPELLANT
JUDGMENT
1. The appellant was charged with Incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006.
2. I t was alleged that on 27/8/2020 at Makusu Village, Nguumo Location Makindu Subcounty Makueni County he unlawfully and intentionally penetrated the anus of EWW with his penis, who was to his knowledge his son age 3 months.
3. In the alternative he was charged with committing an indecent Act with a child contrary to section 11(1) of the same Act - that on the same day, time and place he touched the anus of EW a child aged 3 months old with his penis.
4. He was charged with a 2 nd count of assault causing actual bodily harm contrary 251 of the Penal Code. It was alleged that on 27/8/2020 at the same village, Location,Subcounty and County he assaulted Emmanuel Wambua occasioning him actual bodily harm.
5. The accused pleaded guilty to the charge the 1 st time he came to court - (1/9/2020) the court noted that he appeared confused and sent him for mental health check-up - On 10/9/2020 the report came back that he was fit to plead. He pleaded not guilty to all the counts.
6. The prosecution called 4 witnesses.
7. The case for the prosecution was that the appellant and PW1 the mother of EW were married since 2017. They had 2 children – the 1 st one aged 2½ years, and the victim herein aged 3 months old.
8. The PW1 told the court her husband had the habit of mistreating the baby and had bitten his ears and the neck.
9. On 27/8/2020 she left home for the market and left her husband with the child. When she came home, she saw that the child had injuries on the tongue and his eyes were swollen. That night, while they were sleeping appellant took the child out and defiled him in the anus. When she woke up she reported to the chief, and the child was treated at Makindu hospital. The village elder PW2 confirmed that she received PW1 - at 7.00am on 28/8/2020 and her child who had injuries on the ears and anus. She looked at the child and the mother told her it was the child’s father who had defiled the child. The chief instructed her to have the appellant arrested immediately and the child taken to hospital.
10. PW3 the Investigating officer NO. 61535 CPL Stephen Muriithi received the complainant and the village elder at the police station Kiundwani. He saw the child had injuries on ears, nose, and right side of head. That when the child was taken to hospital - the doctor confirmed that the child had been defiled. The Investigating Officer produced the clinic card for EW which showed that he was born on 25/5/2020.
11. Dr. Mbugua Nicholas testified that he had graduated from the University of Nairobi in 2007 with Bachelor’s degree in Medicine and surgery. That he filled the P3 for EW on 3/3/2021. That the child had history of defilement’s assault. He testified that the child had bite marks on ear, right shoulder and neck, healing scars on both knees, - the anus was loose - cracks at 12 -6 O’clock with pus oozing from the anus. He was admitted in hospital. The stitching was done on the anus. The clinical assessment was sodomy. He produced the P3, and the Post Rape Care Form that was filled on 28/8/2020.
12. Put on his defence the appellant opted to say nothing, leaving it to court to make its decision.
13. Vide judgement delivered on 21/12/2022 the appellant was found guilty of count 1 and 2, he was convicted and sentenced to life imprisonment on count 1 and 2 years imprisonment on court 2.
14. The appellant was aggrieved by both the conviction and sentence and filed this appeal.
15. Vide submissions filed on 6/7/2023 the appellant amended his grounds of appeal to 2 main ones:-
1) That the evidence led by the prosecution lacked credibility
2) That the sentence was too harsh; excessive .
16. In addition, he set out some mitigating factors- that he is a family man, the only breadwinner of the family.
17. He relies on State vs Oscar Pistorius (No citation) on the purpose of punishment – retribution, prevention, rehabilitation and cites Sonu & Another (2) Sack 248(SCA) that at para 30 the court stated that sentencing is about balance and proportion – the crime, the offender, the interest of society. He seeks leniency & refers to the Sentencing Policy Guidelines & Misc. Criminal No. 45 /2018 – Nakuru on the application of sentencing policing guidelines. He seeks that the appeal be allowed, that he gets a lesser sentence or noncustodial sentence on an acquittal.
18. For the respondent- it is submitted that the duty of the 1 st appellate court is set out in Okeno Vs [1972] EA 32 - That the court re-examines the evidence on record afresh - draws its own conclusions always alive to the fact that it never saw nor heard the witnesses.
19. This re-examination must be exhaustive.
20. It is submitted that the age of the victim was proved vide the clinic card. That penetration was proved by the mother and the doctor and that there was corroboration. That the sentence is lawful and justified.
21. I have carefully considered the record, the submissions. It is clear that the only issue is whether the appeal has merit. Whether the prosecution proved the charges against the appellant, whether the sentence is harsh.
22. On the charge of assault there was evidence from the mother, the village elder, the police officer that the child had visible injuries and the healing scars on the knees. The PRC and the P3 clearly documented these injuries. The mother of the child testified on how the child sustained the injuries and the said evidence stands unchallenged. It was credible and corroborated hence on the charge of assault - the evidence on record proves the charge .
23. Regarding t the sentence s. 251 of the Penal Code states;
Assault causing actual bodily harm Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.
24. The sentence of 2 years imprisonment was there for reasonable.
25. On the incest charge - the prosecution in expected to establish age, relationship with the accused, penetration.
26. The child’s age was proved. It is not in dispute that the child was the child of the accused Patrick Mutuku and PW1 - that is indicated in the clinic card - the fact that accused and PW1 were married and had children was also confirmed by PW2 - the village elder – hence the relationship with the child is not in dispute - and was established by the prosecution.
27. On penetration - the child had injuries on the anus. The mother, PW2 – suspected defilement. The PRC indicated that the child had to be admitted in hospital for the anal tissues to be sutured.
28. Penetration is defined in the Sexual offences Act
penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
29. Meaning that the penetration need not be complete and could be partial. In this case the mother’s testimony, the testimony of the doctor and the medical notes all point to the defilement of the child. The anal orifice had to be sutured. The only person who was left with the child was the appellant and it is after he took the child out at night that the next time the mother noted the said injuries. The evidence before the trial court was sufficient that the child had been defiled, and the perpetrator was the child’s father.
30. It is evident from the record that following the incident the appellant appeared confused and the court had to send him for amental health examination. It however indicated that he was well enough to plead and to stand trial. The apparent confusion could have been the outcome of the realization of what he had done.
31. In the circumstances I found no reason to interfere with the finding of the trial court on penetration and the perpetrator.
32. Regarding the sentence s . 20 of the Sexual Offences Act state s : Incest by male persons
(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person
33. The child herein was male. The law refuses to acknowledge the defilement of a boy by the parent to be incest and creates the offence in relation to the child of the opposite sex to the relative involved. This is so despite the definition by the Act , of the act the cause penetration and the anus , as a genital organ:
"genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus;
34. The court has to read s. 20 with s. 8(1) as read with s. 8(2) of the Act which states:
8. Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
35. In the circumstances the court did not have discretion in the sentence. Previously before the Supreme Court’s directions in Muruatetu 2 there was the application of Muruatetu 1 whereby the courts applied the principle that minimum mandatory sentences took away the discretion of the court denying it the opportunity to consider the circumstances of the offence and to determine the appropriate sentence.
36. Even through the Sexual Offences Act states at. S 33
Evidence of surrounding circumstances and impact of sexual offence
Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove-
(a) whether a sexual offence is likely to have been committed—
(i) towards or in connection with the person concerned;
(ii) under coercive circumstances referred to in section 43; and (b) for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned.
37. Courts are bound by the mandatory minimum sentences.
38. The trial court and this court’s hands are tied by the law.
39. The Supreme Court stated that it was up to Parliament to determine the number of years that constitute a life sentence.
40. In the circumstances I find that the appeal is not merited. The conviction and sentence are sustained.
41. Right of appeal explained.
JUDGMENT Dated, signed and delivered virtually this 5 th March 2026
Mumbua T Matheka
Judge
CA Mwiw’a
Appellant present virtually
JUDGMENT HCCRA E019 OF 2023 Page 11 of 11