(Being an appeal from the conviction and sentence of Hon. Onalo J. K. Olga (SRM) in Msambweni Magistrates Court S.O. Case No. E073 of 2023 delivered on 10th January 2025)
J U D G M E N T
Background
1. The appellant, Beja Mgua Mwatsaka was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on diverse dates between April 2023 and 6th November 2023 at Kiwegu B village, Lunga Lunga Sub-County within Kwale County unlawfully and intentionally caused his penis to penetrate into the vagina of M. M. T. a child aged 15 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same dates and at the same place as in the principal charge, he intentionally caused his penis to touch the vagina of M. M. T. a child aged 15 years.
3. The appellant denied both charges. After a full trial, he was found guilty and was convicted of the principal charge of defilement and sentenced to serve 20 years’ imprisonment.
Grounds of appeal
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the grounds set out in his petition of appeal dated 22nd May 2025. He appears to have wished to amend his petition as per the notice of motion dated 17th September 2025 supported by an affidavit that is not commissioned nor showing the date of commissioning. It was received in court on 2nd October 2025, the day the appeal was coming up to confirm that parties had filed submissions. He did not raise the issue of wishing to amend his grounds of appeal with the court. Since the respondent had already filed its submissions, I find the said application incompetent and not for consideration. The appeal therefore proceeds on the grounds filed with the petition. In any case, the amendment sought to abandon the appeal on conviction and remain with the issue of sentence only. That issue was covered in the petition of appeal and so nor prejudice will be occasioned to the appellant in any way. The grounds of appeal are that:
a. The learned trial magistrate erred in law and fact for not observing that the required elements which constitute the offence of defilement were not proved beyond a reasonable doubt.
b. The learned trial magistrate erred in law and fact for not considering that the contradictions and discrepancies featured in the case were fatal to the prosecution case.
c. The learned trial magistrate erred in law and fact for not observing that the prosecution investigations were flimsy to lead this case to gain any truth.
d. The learned trial magistrate failed to consider the appellant’s evidence in defence without any legal basis.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside and he be set at liberty.
Submissions
6. The appeal was canvassed through written submissions filed by the appellant in person and the respondent. Mr. Mbwiza, learned counsel for the appellant came on record after the submissions had been filed. He did not seek to file the submissions afresh. The submissions are considered in the analysis that follows.
Duty of this court
7. This being a first appeal, this court has a duty to examine, re-evaluate and reconsider the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as held in the case of Okeno v Republic (1972) EA 32.
Case before the trial court
8. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and did not call a witness.
9. PW 1, G.M. was the complainant’s mother. PW 2, M. M. T. was the complainant. P.W. 3 Mwachaka Simba is a clinical officer based at Vanga health centre, Lunga Lunga. PW 4, Cpl Ochieng Otieno of Jego police post was the investigating officer in the case.
10. DW 1, Beja Mgua Mwatsaka, the appellant and the accused person at the trial gave sworn evidence in defence and denied that he committed the offence. He said he knew the complainant as they stay in the same area.
11. The facts of the case arising from the evidence tendered are not complex. The complainant, was born on 25th March 2008 as per her certificate of birth produced at the trial as exhibit 6. That made her just fifteen years at the time of the alleged commission of the offence in August 2023 to the end in November 2023. The appellant raised no issue with her age. She was a pupil in class five at a named primary school. The appellant is from her home area, Jego so she knows him well and he also knew her well. The appellant conceded as much.
12. The complainant testified that the appellant befriended her and they engaged in sexual intercourse in his maize farm near his home on three occasions. She realized that she was expectant. She informed the appellant. He told her that he would take her away and marry her. He suggested to her that they elope and they did. On the material day, 16th October 2023 (according to the complainant), PW 2 had been sent by her mother PW 1, to the flour meal to grind maize. Her mother remembered the date as November 2023. The complainant did not proceed to the flour mill. Instead, she left the maize with mzee Bakari, a shop owner, telling him that she was going to school to see her brother. That was a lie. She instead went back home. Her parents were not there but her younger siblings were. She packed her clothes and went to the appellant’s home where the appellant’s sister, Karua took her to an area called Mwabungo. They were ferried by a boda boda rider called John. The appellant was not there.
13. Karua took her to her relative, Karua’s sister-in-law called Fatuma and they left her there. She stayed with Fatuma from 16th October to 3rd November 2023. She became sick and Fatuma took her to hospital and upon examination she was found to be pregnant. Fatuma declared that she would not stay with a pregnant person. She gave her fare and she went back to her parents’ home. Initially she was afraid of getting home. She stayed in the bushes feeding on mangoes. She met her friends Mbeya and Ndana and asked them to go tell her father that she was afraid of going home. They returned and told her that her father had said she could return and he was not going to punish her. She went back home. Her father reported the incident to the village chairman and at Beja police station and then took her to hospital.
14. PW 3, examined the complainant at Vanga health centre and found that she was expectant. He completed her P3 form on 7th November 2023. He referred her to the ante-natal clinic. According to PW 3, the complainant told him that her relationship with the appellant begun in April 2023 and they had sex for the first time in August 2023 in the bushes. After that she failed to get her menses. That the appellant was married with a toddler aged two years.
15. According to PW 3, upon a vaginal examination of the complainant he found that two fingers could be accommodated, an indication that there had been penetration.
16. PW 3 also examined the appellant who told him that he was 21 years old.
17. PW 4 conducted investigations in the matter and had the appellant arrested and charged with the offences.
Analysis
18. I have examined and re-evaluated the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the parties. The point for determination is whether or not the prosecution proved a case of defilement of a girl aged 15 years against the appellant beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion in its finding.
19. Section 8(1) and 8(3) of the Sexual Offences Act under which the appellant was charged and convicted provides as follows:
S.8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(4) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
20. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
21. The appellant did not offer submissions on the conviction. Learned counsel for the respondent herein submits that the prosecution proved the offence of defilement beyond a reasonable doubt and the findings and decision of the trial court should be upheld.
22. The learned trial magistrate set out the essential ingredients to be established by the prosecution in order to prove the offence of defilement and then evaluated the evidence tendered in proof of each of them.
23. The learned trial magistrate upon evaluating the evidence found that the age of the complainant had been proved as 15 years through the certificate of birth produced in evidence. She was therefore a minor. That finding was correct and is upheld.
24. The complainant’s evidence that her genital organ had been penetrated was corroborated by the evidence of PW 3, the clinical officer who examined her. As stated above, there was positive finding of penetration through the medical evidence tendered that the complainant had conceived and was expectant which was evidence to support her evidence of sexual intercourse. The learned trial magistrate found that penetration had been proved by the complainant’s evidence that she had engaged in sexual intercourse several times and the evidence of her being pregnant.
25. I am too satisfied from that evidence that the fact of penetration of the complainant’s genital organ was satisfactorily proved by that evidence.
26. The only issue that requires closer examination is the identification of the appellant as the perpetrator of the offence.
27. From my consideration of the evidence before the trial court, I find that the complainant was the only witness on the element of identification. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
28. The proviso to section 124 of the Evidence Act permits the court to rely on the evidence of a victim of a sexual offence where hers is the only evidence. In my understanding, there is no requirement under this proviso that the evidence be corroborated whether sworn or unsworn. What is required is that the court determines that the victim is a witness of truth. This determination is paramount where the only evidence is that of the alleged victim of the sexual offence. It therefore behooves the court first to determine whether there is any other evidence besides that of the victim, to prove the offence. If there is, it will proceed to consider it alongside the evidence of the victim and determine the strength of it, that is, whether it corroborates the evidence of the victim.
29. If there is no other evidence besides that of the victim the, court then has to go further and indicate that it is relying on the evidence of the victim alone. In that case, the court has to go back to the proceedings to see to it that it had recorded in the proceedings that the victim was telling the truth.
30. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
31. The complainant herein was not a child of tender tender years and so the provisions of section 19 of the Oaths and Statutory Declarations Act would not apply in her case. According to the above decision, corroboration of her evidence was not necessary. The only issue to determine is whether she was a credible witness and her evidence reliable.
32. The complainant testified that she had sexual intercourse with the appellant three times beginning August 2023 before the day she escaped from home to allegedly elope with the appellant. On the day of escape from home, she was ferried to Fatuma’s home by Karua, the appellant’s sister and John, a boda boda rider. These three people Karua, John and Fatuma appear to be well known to the complainant. The appellant asked the investigating officer in cross-examination why he had not made them available and she simply said that they could not be traced without making an indication of the efforts made to trace them.
33. All the same, considering the role the complainant said that they played in the scheme, it is doubtful that they could have made themselves available to testify in the case.
34. There is evidence from the complainant and the clinical officer that the complainant was defiled because at the time of examination, she was expectant. The complainant identified the appellant positively to the clinical officer, the police officer and in court as the perpetrator. She knew him well, his home and his family. The appellant also conceded that she knew the complainant well as a neighbor. She said that prior to the incident of her taking off from home, they were in a relationship. I find that the appellant knew that she was in school yet went ahead to befriend her and afterwards engaged in sexual intercourse with her. The two being neighbours and the complainant being a school child should have given the appellant a good opportunity to establish whether she was of mature age or not, if he cared to. He did not care to do that. It appears that he neglected that fact altogether.
35. They went ahead to engage in sexual intercourse three times in the appellant’s home but on the farm, starting in August 2023. It was upon the complainant realizing that she was expectant, that she informed the appellant who arranged for her to elope with him. This was not a one off-incident but a deliberate and continuous engagement where one can see that the appellant was well aware of what he was doing. Perhaps his intention was to marry the complainant but he was not patient enough to wait for her to become of age. That is why he arranged with the complainant to spirit her away from her parents.
36. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
37. The court trial court examined the complainant and was satisfied that she could give sworn evidence, meaning that she understood the meaning of telling the truth.
38. From the evidence tendered before the trial court I find no reason to fault the complainant’s credibility. She offered a consistent testimony of how her relationship with the appellant arose, how it grew and how she ran away from home and eloped with the appellant. Although they were neighbours, there is no indication, either through cross-examination or through the defence tendered by the appellant, that her testimony could have been motivated by an ulterior motive that would have caused her to fabricate the story against the appellant. I find that the complainant was a credible witness and her evidence was reliable. The learned trial magistrate was therefore correct to find so and rely on her evidence.
39. One of the appellant’s grounds of appeal was that the trial court failed to consider inconsistencies and contradictions in the prosecution’s case. I did not find any and so I find that there was no material contradiction or inconsistence in the prosecution’s case that would create a doubt in the mind of the court.
40. In the final analysis, I find that there was credible evidence to prove that the appellant committed the offence of defilement with a child aged 15 years. He was therefore properly convicted of the offence by the trial court.
41. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
42. With regard to sentencing, the appellant was sentenced to 20 years’ imprisonment. M.M.T, the victim of the defilement was 15 years old at the time of commission of the offence. Section 8(3) of the Sexual Offences Act prescribes a minimum sentence of 20 years imprisonment for any person convicted for the offence of defilement of a minor aged between 12 and 15 years. The sentence of 20 years that was imposed on the appellant was lawful and I find no basis of disturbing the same.
43. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where the Court stated regarding the jurisdiction of an appellate court when dealing with sentences that:
“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 (emphasis mine). It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.”
44. Following that decision, I find that the appellant’s extensive submissions to try and convince this court that the sentence imposed by the trial court was unconstitutional for being discriminatory under Article 27 of the Constitution as a minimum sentence and that this court has power under section 354(3) of the Criminal Procedure Code to reduce the sentence are baseless. Equally, his submission that the trial court failed to consider his submissions is baseless because in fact the trial court gave due consideration to his submissions as expressed in its sentence dated 31st January 2025, indicating that the sentence was mandatory, even though the correct position is that it is a minimum sentence from which it could not and neither can this court depart, as per the Supreme Court decision in the Mwangi case above.
45. I note that it is not clear whether the accused person was ever released on bond or stayed in custody for the entire period of his trial since I have seen in the trial court file an indication that someone had presented documents for consideration as a surety but proceedings for examination and approval of surety are not in the file. It is hereby ordered that the period that the appellant spent in custody has to be factored in his sentence which will run from the date of arrest to either the date he was released on bond or if he was in custody for the entire period, the same shall run from the date of his arrest shown in the charge sheet as 24th November 2023 and the period to be discounted from his sentence.
46. In the upshot, save for compliance with section 333(2) of the CPC as explained above, I find the appeal on both conviction and sentence is without merit and the same is hereby dismissed in its entirety. The decision of the trial court convicting the appellant for defilement contrary to section 8(1) as read with section 8(3) and the sentence imposed is affirmed.
47. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Microsoft Teams, this 21st day of May 2026 in the presence of:
The appellant in person from Shimo La Tewa Maximum prison.
Nandi (Ms) for the respondent
Ummu: Court assistant.
J U D G M E N T
Background
1. The appellant, Beja Mgua Mwatsaka was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on diverse dates between April 2023 and 6th November 2023 at Kiwegu B village, Lunga Lunga Sub-County within Kwale County unlawfully and intentionally caused his penis to penetrate into the vagina of M. M. T. a child aged 15 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same dates and at the same place as in the principal charge, he intentionally caused his penis to touch the vagina of M. M. T. a child aged 15 years.
3. The appellant denied both charges. After a full trial, he was found guilty and was convicted of the principal charge of defilement and sentenced to serve 20 years’ imprisonment.
Grounds of appeal
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the grounds set out in his petition of appeal dated 22nd May 2025. He appears to have wished to amend his petition as per the notice of motion dated 17th September 2025 supported by an affidavit that is not commissioned nor showing the date of commissioning. It was received in court on 2nd October 2025, the day the appeal was coming up to confirm that parties had filed submissions. He did not raise the issue of wishing to amend his grounds of appeal with the court. Since the respondent had already filed its submissions, I find the said application incompetent and not for consideration. The appeal therefore proceeds on the grounds filed with the petition. In any case, the amendment sought to abandon the appeal on conviction and remain with the issue of sentence only. That issue was covered in the petition of appeal and so nor prejudice will be occasioned to the appellant in any way. The grounds of appeal are that:
a. The learned trial magistrate erred in law and fact for not observing that the required elements which constitute the offence of defilement were not proved beyond a reasonable doubt.
b. The learned trial magistrate erred in law and fact for not considering that the contradictions and discrepancies featured in the case were fatal to the prosecution case.
c. The learned trial magistrate erred in law and fact for not observing that the prosecution investigations were flimsy to lead this case to gain any truth.
d. The learned trial magistrate failed to consider the appellant’s evidence in defence without any legal basis.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside and he be set at liberty.
Submissions
6. The appeal was canvassed through written submissions filed by the appellant in person and the respondent. Mr. Mbwiza, learned counsel for the appellant came on record after the submissions had been filed. He did not seek to file the submissions afresh. The submissions are considered in the analysis that follows.
Duty of this court
7. This being a first appeal, this court has a duty to examine, re-evaluate and reconsider the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as held in the case of Okeno v Republic (1972) EA 32.
Case before the trial court
8. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and did not call a witness.
9. PW 1, G.M. was the complainant’s mother. PW 2, M. M. T. was the complainant. P.W. 3 Mwachaka Simba is a clinical officer based at Vanga health centre, Lunga Lunga. PW 4, Cpl Ochieng Otieno of Jego police post was the investigating officer in the case.
10. DW 1, Beja Mgua Mwatsaka, the appellant and the accused person at the trial gave sworn evidence in defence and denied that he committed the offence. He said he knew the complainant as they stay in the same area.
11. The facts of the case arising from the evidence tendered are not complex. The complainant, was born on 25th March 2008 as per her certificate of birth produced at the trial as exhibit 6. That made her just fifteen years at the time of the alleged commission of the offence in August 2023 to the end in November 2023. The appellant raised no issue with her age. She was a pupil in class five at a named primary school. The appellant is from her home area, Jego so she knows him well and he also knew her well. The appellant conceded as much.
12. The complainant testified that the appellant befriended her and they engaged in sexual intercourse in his maize farm near his home on three occasions. She realized that she was expectant. She informed the appellant. He told her that he would take her away and marry her. He suggested to her that they elope and they did. On the material day, 16th October 2023 (according to the complainant), PW 2 had been sent by her mother PW 1, to the flour meal to grind maize. Her mother remembered the date as November 2023. The complainant did not proceed to the flour mill. Instead, she left the maize with mzee Bakari, a shop owner, telling him that she was going to school to see her brother. That was a lie. She instead went back home. Her parents were not there but her younger siblings were. She packed her clothes and went to the appellant’s home where the appellant’s sister, Karua took her to an area called Mwabungo. They were ferried by a boda boda rider called John. The appellant was not there.
13. Karua took her to her relative, Karua’s sister-in-law called Fatuma and they left her there. She stayed with Fatuma from 16th October to 3rd November 2023. She became sick and Fatuma took her to hospital and upon examination she was found to be pregnant. Fatuma declared that she would not stay with a pregnant person. She gave her fare and she went back to her parents’ home. Initially she was afraid of getting home. She stayed in the bushes feeding on mangoes. She met her friends Mbeya and Ndana and asked them to go tell her father that she was afraid of going home. They returned and told her that her father had said she could return and he was not going to punish her. She went back home. Her father reported the incident to the village chairman and at Beja police station and then took her to hospital.
14. PW 3, examined the complainant at Vanga health centre and found that she was expectant. He completed her P3 form on 7th November 2023. He referred her to the ante-natal clinic. According to PW 3, the complainant told him that her relationship with the appellant begun in April 2023 and they had sex for the first time in August 2023 in the bushes. After that she failed to get her menses. That the appellant was married with a toddler aged two years.
15. According to PW 3, upon a vaginal examination of the complainant he found that two fingers could be accommodated, an indication that there had been penetration.
16. PW 3 also examined the appellant who told him that he was 21 years old.
17. PW 4 conducted investigations in the matter and had the appellant arrested and charged with the offences.
Analysis
18. I have examined and re-evaluated the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the parties. The point for determination is whether or not the prosecution proved a case of defilement of a girl aged 15 years against the appellant beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion in its finding.
19. Section 8(1) and 8(3) of the Sexual Offences Act under which the appellant was charged and convicted provides as follows:
S.8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(4) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
20. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
21. The appellant did not offer submissions on the conviction. Learned counsel for the respondent herein submits that the prosecution proved the offence of defilement beyond a reasonable doubt and the findings and decision of the trial court should be upheld.
22. The learned trial magistrate set out the essential ingredients to be established by the prosecution in order to prove the offence of defilement and then evaluated the evidence tendered in proof of each of them.
23. The learned trial magistrate upon evaluating the evidence found that the age of the complainant had been proved as 15 years through the certificate of birth produced in evidence. She was therefore a minor. That finding was correct and is upheld.
24. The complainant’s evidence that her genital organ had been penetrated was corroborated by the evidence of PW 3, the clinical officer who examined her. As stated above, there was positive finding of penetration through the medical evidence tendered that the complainant had conceived and was expectant which was evidence to support her evidence of sexual intercourse. The learned trial magistrate found that penetration had been proved by the complainant’s evidence that she had engaged in sexual intercourse several times and the evidence of her being pregnant.
25. I am too satisfied from that evidence that the fact of penetration of the complainant’s genital organ was satisfactorily proved by that evidence.
26. The only issue that requires closer examination is the identification of the appellant as the perpetrator of the offence.
27. From my consideration of the evidence before the trial court, I find that the complainant was the only witness on the element of identification. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
28. The proviso to section 124 of the Evidence Act permits the court to rely on the evidence of a victim of a sexual offence where hers is the only evidence. In my understanding, there is no requirement under this proviso that the evidence be corroborated whether sworn or unsworn. What is required is that the court determines that the victim is a witness of truth. This determination is paramount where the only evidence is that of the alleged victim of the sexual offence. It therefore behooves the court first to determine whether there is any other evidence besides that of the victim, to prove the offence. If there is, it will proceed to consider it alongside the evidence of the victim and determine the strength of it, that is, whether it corroborates the evidence of the victim.
29. If there is no other evidence besides that of the victim the, court then has to go further and indicate that it is relying on the evidence of the victim alone. In that case, the court has to go back to the proceedings to see to it that it had recorded in the proceedings that the victim was telling the truth.
30. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
31. The complainant herein was not a child of tender tender years and so the provisions of section 19 of the Oaths and Statutory Declarations Act would not apply in her case. According to the above decision, corroboration of her evidence was not necessary. The only issue to determine is whether she was a credible witness and her evidence reliable.
32. The complainant testified that she had sexual intercourse with the appellant three times beginning August 2023 before the day she escaped from home to allegedly elope with the appellant. On the day of escape from home, she was ferried to Fatuma’s home by Karua, the appellant’s sister and John, a boda boda rider. These three people Karua, John and Fatuma appear to be well known to the complainant. The appellant asked the investigating officer in cross-examination why he had not made them available and she simply said that they could not be traced without making an indication of the efforts made to trace them.
33. All the same, considering the role the complainant said that they played in the scheme, it is doubtful that they could have made themselves available to testify in the case.
34. There is evidence from the complainant and the clinical officer that the complainant was defiled because at the time of examination, she was expectant. The complainant identified the appellant positively to the clinical officer, the police officer and in court as the perpetrator. She knew him well, his home and his family. The appellant also conceded that she knew the complainant well as a neighbor. She said that prior to the incident of her taking off from home, they were in a relationship. I find that the appellant knew that she was in school yet went ahead to befriend her and afterwards engaged in sexual intercourse with her. The two being neighbours and the complainant being a school child should have given the appellant a good opportunity to establish whether she was of mature age or not, if he cared to. He did not care to do that. It appears that he neglected that fact altogether.
35. They went ahead to engage in sexual intercourse three times in the appellant’s home but on the farm, starting in August 2023. It was upon the complainant realizing that she was expectant, that she informed the appellant who arranged for her to elope with him. This was not a one off-incident but a deliberate and continuous engagement where one can see that the appellant was well aware of what he was doing. Perhaps his intention was to marry the complainant but he was not patient enough to wait for her to become of age. That is why he arranged with the complainant to spirit her away from her parents.
36. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
37. The court trial court examined the complainant and was satisfied that she could give sworn evidence, meaning that she understood the meaning of telling the truth.
38. From the evidence tendered before the trial court I find no reason to fault the complainant’s credibility. She offered a consistent testimony of how her relationship with the appellant arose, how it grew and how she ran away from home and eloped with the appellant. Although they were neighbours, there is no indication, either through cross-examination or through the defence tendered by the appellant, that her testimony could have been motivated by an ulterior motive that would have caused her to fabricate the story against the appellant. I find that the complainant was a credible witness and her evidence was reliable. The learned trial magistrate was therefore correct to find so and rely on her evidence.
39. One of the appellant’s grounds of appeal was that the trial court failed to consider inconsistencies and contradictions in the prosecution’s case. I did not find any and so I find that there was no material contradiction or inconsistence in the prosecution’s case that would create a doubt in the mind of the court.
40. In the final analysis, I find that there was credible evidence to prove that the appellant committed the offence of defilement with a child aged 15 years. He was therefore properly convicted of the offence by the trial court.
41. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
42. With regard to sentencing, the appellant was sentenced to 20 years’ imprisonment. M.M.T, the victim of the defilement was 15 years old at the time of commission of the offence. Section 8(3) of the Sexual Offences Act prescribes a minimum sentence of 20 years imprisonment for any person convicted for the offence of defilement of a minor aged between 12 and 15 years. The sentence of 20 years that was imposed on the appellant was lawful and I find no basis of disturbing the same.
43. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where the Court stated regarding the jurisdiction of an appellate court when dealing with sentences that:
“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 (emphasis mine). It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.”
44. Following that decision, I find that the appellant’s extensive submissions to try and convince this court that the sentence imposed by the trial court was unconstitutional for being discriminatory under Article 27 of the Constitution as a minimum sentence and that this court has power under section 354(3) of the Criminal Procedure Code to reduce the sentence are baseless. Equally, his submission that the trial court failed to consider his submissions is baseless because in fact the trial court gave due consideration to his submissions as expressed in its sentence dated 31st January 2025, indicating that the sentence was mandatory, even though the correct position is that it is a minimum sentence from which it could not and neither can this court depart, as per the Supreme Court decision in the Mwangi case above.
45. I note that it is not clear whether the accused person was ever released on bond or stayed in custody for the entire period of his trial since I have seen in the trial court file an indication that someone had presented documents for consideration as a surety but proceedings for examination and approval of surety are not in the file. It is hereby ordered that the period that the appellant spent in custody has to be factored in his sentence which will run from the date of arrest to either the date he was released on bond or if he was in custody for the entire period, the same shall run from the date of his arrest shown in the charge sheet as 24th November 2023 and the period to be discounted from his sentence.
46. In the upshot, save for compliance with section 333(2) of the CPC as explained above, I find the appeal on both conviction and sentence is without merit and the same is hereby dismissed in its entirety. The decision of the trial court convicting the appellant for defilement contrary to section 8(1) as read with section 8(3) and the sentence imposed is affirmed.
47. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Microsoft Teams, this 21st day of May 2026 in the presence of:
The appellant in person from Shimo La Tewa Maximum prison.
Nandi (Ms) for the respondent
Ummu: Court assistant.