1. The Appellant herein, was convicted in Kaloleni Sexual Offences Case No. E020 of 2022, of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to 30 years imprisonment. The particulars of the offence are that on diverse dates between June 2021 and June 2022 at Mwanzai village, Jibana location, Kaloleni sub-county within Kilifi county, intentionally and unlawfully caused his penis to penetrate the vagina of S. K. R, a child aged 14 years.
2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The summarized amended grounds of appeal are that the trial Magistrate erred by:
i) shifting the burden of proof to the Appellant.
ii) failing to appreciate the sharp inconsistencies and contradictions in the prosecution evidence.
iii) failing to consider that the exhibits were unreliable.
iv) failing to appreciate that the case was poorly and shoddily investigated.
v) failing to concretely and conclusively appreciate the Appellant’s defence.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.
5. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
6. The record contains the birth certificate of the Complainant which indicates that she was born on 11.9.08. In June 2021 and 15.6.22, when the offence is alleged to have been committed, the Complainant was between the age of 13 and 14 years respectively. This was not challenged by the Appellant.
7. As regards penetration, the Complainant testified that she lived with the Appellant who is her stepfather, her mother and her young siblings. Her mother often went to the farm where she would stay for a week leaving the children with the Appellant. During her absence from home, the Appellant would go to the Complainant’s bed and “remove my clothes and then have sexual intercourse with me by penetrating my vagina using his penis.” She stated that this happened severally. The Complainant further testified that the Appellant threatened to kill her if she told anyone or if she refused to have sex with him and he sometimes strangled her. Due to fear, she did not tell her mother or anyone. The Complainant then fell pregnant and the Appellant gave her 2 tablets to swallow. This led severed stomachache and the Appellant took her to hospital. She was admitted to hospital for 1 day and lost the 5 month pregnancy.
8. PW5 Mwangolo Chigulu a Senior Clinical Officer at Mariakani Subcounty Hospital stated that the Complainant was examined at the Hospital on 21.6.22. She was found to be nursing and breastfeeding and had pain in the abdomen. Her hymen was broken with loose sphincter vaginal muscles and was bleeding. An ultrasound revealed retained products of pregnancy in the uterus and she was cleaned. PW5 confirmed that the Complainant was in pain due to incomplete abortion and there was proof of penetration. He produced the P3 form, lab request treatment notes and scan report. The test of penetration was thus established.
9. In a bid to discredit the Complainant’s birth certificate, the Appellant submitted that the same was obtained on 21.6.22 the same day the matter was reported to the police and the same day the P3 form was filled. He contends that this was planned. Further, that the first page of the exercise book with the treatment notes is dated 17.6.22 while the second page is dated 21.6.22. he contends that this does not match the evidence that the Complainant was taken to hospital on 20.6.22.
10. I have looked at the record and note that the Appellant did not challenge the documentary evidence in cross examination or in his defence in the trial court. The challenge to the cited documents is a new issue that was not raised in the trial court and no decision was made thereon. As such, this Court sitting on appeal cannot make a decision on the same. An appeal can only lie where there has been a decision made by a lower court. This was the holding in Kipkorir v Republic (Criminal Appeal E056 of 2022) [2024] KECA 745 (KLR) (21 June 2024) (Judgment) where the Court of Appeal stated:
We are of the considered opinion that this court sitting as a second appellate court can only entertain matters that were considered by the court being appealed from. An appeal can only lie where there has been a decision made by a lower court. If an issue was not brought up before the lower court, and therefore not determined, then any decision made by the appellate court would not be considered a judgment on an appeal.
11. On identification of the perpetrator. The Complainant stated that the Appellant is her stepfather and he had been defiling her whenever her mother went away to the shamba and left the Complainant and her siblings with the Appellant. During cross examination, the Complainant stated that the Appellant had intercourse with her severally and that he threatened her not to tell anyone. She further stated that he was responsible for her pregnancy and gave her tablets that resulted in her abortion. The Appellant was thus positively identified.
12. In his unsworn defence, the Appellant stated that he had a misunderstanding with his wife after she took his money and went home. He followed her home and she warned him. She returned home in May and he was arrested 3 days later. In her judgment, the trial Magistrate found that the Appellant failed to exonerate himself. I concur with the trial Magistrate. In cross examination of his wife PW2, the Appellant did not raise the alleged conflict. This defence was clearly an afterthought.
13. After considering the evidence, I find that the prosecution proved its case beyond reasonable doubt. I see no contradictions and inconsistencies in the prosecution evidence. There is also nothing on record to support the Appellant’s claim that the burden of proof was shifted to him or that the case was shoddily and inadequately investigated.
14. In the end, my finding is that the Appellant was properly convicted and sentenced. The Appeal is dismissed and both the conviction and sentence are upheld.
DATED, SIGNED and DELIVERED in Malindi this 23rd day of May 2025
2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The summarized amended grounds of appeal are that the trial Magistrate erred by:
i) shifting the burden of proof to the Appellant.
ii) failing to appreciate the sharp inconsistencies and contradictions in the prosecution evidence.
iii) failing to consider that the exhibits were unreliable.
iv) failing to appreciate that the case was poorly and shoddily investigated.
v) failing to concretely and conclusively appreciate the Appellant’s defence.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.
5. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
6. The record contains the birth certificate of the Complainant which indicates that she was born on 11.9.08. In June 2021 and 15.6.22, when the offence is alleged to have been committed, the Complainant was between the age of 13 and 14 years respectively. This was not challenged by the Appellant.
7. As regards penetration, the Complainant testified that she lived with the Appellant who is her stepfather, her mother and her young siblings. Her mother often went to the farm where she would stay for a week leaving the children with the Appellant. During her absence from home, the Appellant would go to the Complainant’s bed and “remove my clothes and then have sexual intercourse with me by penetrating my vagina using his penis.” She stated that this happened severally. The Complainant further testified that the Appellant threatened to kill her if she told anyone or if she refused to have sex with him and he sometimes strangled her. Due to fear, she did not tell her mother or anyone. The Complainant then fell pregnant and the Appellant gave her 2 tablets to swallow. This led severed stomachache and the Appellant took her to hospital. She was admitted to hospital for 1 day and lost the 5 month pregnancy.
8. PW5 Mwangolo Chigulu a Senior Clinical Officer at Mariakani Subcounty Hospital stated that the Complainant was examined at the Hospital on 21.6.22. She was found to be nursing and breastfeeding and had pain in the abdomen. Her hymen was broken with loose sphincter vaginal muscles and was bleeding. An ultrasound revealed retained products of pregnancy in the uterus and she was cleaned. PW5 confirmed that the Complainant was in pain due to incomplete abortion and there was proof of penetration. He produced the P3 form, lab request treatment notes and scan report. The test of penetration was thus established.
9. In a bid to discredit the Complainant’s birth certificate, the Appellant submitted that the same was obtained on 21.6.22 the same day the matter was reported to the police and the same day the P3 form was filled. He contends that this was planned. Further, that the first page of the exercise book with the treatment notes is dated 17.6.22 while the second page is dated 21.6.22. he contends that this does not match the evidence that the Complainant was taken to hospital on 20.6.22.
10. I have looked at the record and note that the Appellant did not challenge the documentary evidence in cross examination or in his defence in the trial court. The challenge to the cited documents is a new issue that was not raised in the trial court and no decision was made thereon. As such, this Court sitting on appeal cannot make a decision on the same. An appeal can only lie where there has been a decision made by a lower court. This was the holding in Kipkorir v Republic (Criminal Appeal E056 of 2022) [2024] KECA 745 (KLR) (21 June 2024) (Judgment) where the Court of Appeal stated:
We are of the considered opinion that this court sitting as a second appellate court can only entertain matters that were considered by the court being appealed from. An appeal can only lie where there has been a decision made by a lower court. If an issue was not brought up before the lower court, and therefore not determined, then any decision made by the appellate court would not be considered a judgment on an appeal.
11. On identification of the perpetrator. The Complainant stated that the Appellant is her stepfather and he had been defiling her whenever her mother went away to the shamba and left the Complainant and her siblings with the Appellant. During cross examination, the Complainant stated that the Appellant had intercourse with her severally and that he threatened her not to tell anyone. She further stated that he was responsible for her pregnancy and gave her tablets that resulted in her abortion. The Appellant was thus positively identified.
12. In his unsworn defence, the Appellant stated that he had a misunderstanding with his wife after she took his money and went home. He followed her home and she warned him. She returned home in May and he was arrested 3 days later. In her judgment, the trial Magistrate found that the Appellant failed to exonerate himself. I concur with the trial Magistrate. In cross examination of his wife PW2, the Appellant did not raise the alleged conflict. This defence was clearly an afterthought.
13. After considering the evidence, I find that the prosecution proved its case beyond reasonable doubt. I see no contradictions and inconsistencies in the prosecution evidence. There is also nothing on record to support the Appellant’s claim that the burden of proof was shifted to him or that the case was shoddily and inadequately investigated.
14. In the end, my finding is that the Appellant was properly convicted and sentenced. The Appeal is dismissed and both the conviction and sentence are upheld.
DATED, SIGNED and DELIVERED in Malindi this 23rd day of May 2025