(Being an Appeal against the Judgment and Conviction at the Chief Magistrate’s Court at Malindi delivered by Hon. Onalo J.K Olga SRM in S.O No. E094 of 2021 14 th June, 2024)
The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars of the offence were that on diverse dates of March, 2021 in Jambiani village in Magarini Sub County within Kilifi County intentionally and unlawfully caused his genital organ namely penis to penetrate into a female genital organ namely vagina of S.R a girl aged 16 years.
The accused faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates of March, 2021 in Jambiani village in Magarini Sub County intentionally and unlawfully committed an indecent act by touching the vagina of S.R a child aged 16 years by using his penis.
The appellant pleaded not guilty to the charges when he was arraigned before the trial court. Four witnesses testified against the appellant before the trial court. The appellant in his defence gave a sworn testimony. In a judgment delivered on 14 th June, 2024 the trial magistrate found the appellant guilty and convicted him accordingly. Subsequently on 26 th June, 2024 the trial magistrate sentenced the appellant to serve 15 years imprisonment. The appellant aggrieved by the conviction and sentence preferred this appeal.
In amended grounds of appeal, the appellant raised five grounds of appeal to wit:
1. The learned magistrate erred in law and facts by failing to consider that the charge sheet was defective hence did not accord with the evidence of events of commission of the offence;
2. The learned magistrate erred in law and facts by failing to consider that PW1’s evidence was unreliable;
3. The learned trial magistrate erred in law and facts by failing to consider that the prosecution failed to discharge burden of proof to the legal required standard;
4. The learned magistrate erred in law and facts by shifting the burden of proof to the appellant making the conviction unsafe; and
5. The learned magistrate erred in law and facts by failing to consider the appellant’s defence.
The prosecution case was that PW1 the complainant aged 16 years was at home sometimes in March, 2021 when the appellant told her that he loved her. The appellant told her to go to his house which was about two-minutes’ walk their home. She testified that she went to the house and had sex with the appellant till 12am. She went home and when her mother asked her where she was, she told her that she was at the appellant’s house. Her mother took her back to the appellant’s place. The following day the matter was reported at the police station. She was then taken to hospital for medical examination.
PW2 P.C Makori Concepta of Marereni police station testified that the complainant was brought to the station after being found in a man’s house. She conducted investigations and later charged the appellant with the offence of defilement.
PW3 Abdullahi Ibrahim a medical doctor working at Malindi Sub County hospital produced P3 Form which was filled by Dr. Rimba whom he had worked with for 7 years. He testified that the complainant was treated at Marereni Dispensary before being taken to Malindi Sub County hospital. The finding of the medical examination was that there was vaginal penetration.
PW4 Faida Ngala the mother of the complainant testified that on 27 th March, 2021 after super they went to sleep. Later the complainant’s brother came and told her that the complainant was not in the room. The complainant came home later at 1am. When questioned where she was, she said she was at the appellant’s house. She went to the appellant’s home and told his mother. She then took the complainant to the police station. In cross-examination she said she did not know where the complainant had gone but when questioned she said she was at the appellant’s house.
The appellant upon being placed on his defence he gave sworn statement. He said that the case was a frame up because of a grudge between the two families.
Both the appellant and respondent filed written submissions which I have carefully perused and considered.
This being the first appeal, the duty of this court is to analyze and evaluate the evidence adduced before the trial court and arrive at its own independent decision, of course noting that it did not have the opportunity to hear and see the witnesses testify in court. I am guided by the celebrated case of Okeno vs Republic (1972) E.A 32.
Further to the foregoing, it must be noted that it is the duty of the prosecution to prove the case against an accused person beyond reasonable doubt. This need not be overemphasized as it has been restated in numerous authorities among them the case of Stephen Nguli Mulili vs Republic (2014) e KLR.
With the foregoing in mind, I will consider whether the conviction of the appellant is supported by the evidence adduced by the prosecution before the trial court. In doing so it is prudent that I set out the ingredients of the offence of defilement.
The offence of defilement is a creature of Section 8(1) of the Sexual Offences Act which provides:
“Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 the court stated:
“That the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.”
In this appeal the appellant attacked the finding of the trial court that the charge was defective in the sense that the same indicated that the offence was committed on diverse dates of March, 2021 whereas the OB report indicated that the offence was committed on 26 th March, 2021. He further submitted that the evidence adduced was at variance with the charge. The respondent did not submit on this issue.
Section 134 of the Criminal Procedure Code provides:
“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
In the instant case, much as the charge indicated that the offence was committed on diverse dates, I am of the opinion that the narrative in the charge sheet was sufficient and the appellant cannot say to have been embarrassed or prejudiced in any way and thus the submission that the charge was defective is not merited.
The appellant further argued that the charges were not proved beyond reasonable doubt. As indicated hereinabove, the essential ingredients of the offence are the age of the complainant. The appellant was charged under Section 8(1) as read with Section 8(4) of the Sexual Offences Act. Section 8(4) of the Act provides for age bracket for purposes of sentence. In this case the prosecution produced birth certificate showing that the complainant was born on 2 nd May, 2005. The offence is alleged to have been committed in March, 2021. Thus, the age of the complainant was 16 years as at the time of the commission of the offence which is within the provision of Section 8(4) of the Sexual Offences Act. Therefore, the element of age was proved as required and the trial court cannot be faulted.
On the element of penetration, PW3 produced a P3 Form showing that there was penetration into the complainant’s genital organ namely vagina. This corroborates the complainant’s evidence that she had sexual intercourse with the appellant who called her to his house.
On the element of identification of the appellant as the assailant, the complainant was categorical in her evidence that the appellant called her to his house. The appellant was well known to the complainant. Further PW4 testified that when the complainant resurfaced at 1am she told her that she was from the appellant’s house. It is therefore clear that the appellant was identified as the assailant.
The appellant alluded to inconsistencies and contradiction on the prosecution case. In the case of Richard Munene vs Republic (2018) e KLR the court stated as follows regarding inconsistencies and contradictions:
“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to main issue in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”
In the instant case I have evaluated the evidence adduced by the prosecution witnesses and I find no inconsistencies or contradictions as alluded by the appellant. The prosecution case as presented by the witnesses was consistent that the appellant called the complainant to his house and they had sexual intercourse. The complainant herself whom the trial court believed told the court that she had sex with the appellant. Her mother who testified as PW3 told the court that when the complainant resurfaced after missing from 9pm to 1am she told her that she was at the appellant’s house. The medical evidence showed that there was vaginal penetration. The discrepancies alluded to by the appellant as to the report in the OB on the different in the name and age were not substantial so as to create doubt in the prosecution case.
Regarding the sentence the same was within the law and I have no reason to disturb the same.
The upshot is that the appeal lacks merit and the same is dismissed and the conviction and sentence of the trial court is hereby upheld.
Dated, signed and delivered virtually this 30 th day of June, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Malindi G.K Prison
Ms. Mutua for the Respondent appearing virtually
Ms. Otwo Court Assistant appearing virtually.
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The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars of the offence were that on diverse dates of March, 2021 in Jambiani village in Magarini Sub County within Kilifi County intentionally and unlawfully caused his genital organ namely penis to penetrate into a female genital organ namely vagina of S.R a girl aged 16 years.
The accused faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates of March, 2021 in Jambiani village in Magarini Sub County intentionally and unlawfully committed an indecent act by touching the vagina of S.R a child aged 16 years by using his penis.
The appellant pleaded not guilty to the charges when he was arraigned before the trial court. Four witnesses testified against the appellant before the trial court. The appellant in his defence gave a sworn testimony. In a judgment delivered on 14 th June, 2024 the trial magistrate found the appellant guilty and convicted him accordingly. Subsequently on 26 th June, 2024 the trial magistrate sentenced the appellant to serve 15 years imprisonment. The appellant aggrieved by the conviction and sentence preferred this appeal.
In amended grounds of appeal, the appellant raised five grounds of appeal to wit:
1. The learned magistrate erred in law and facts by failing to consider that the charge sheet was defective hence did not accord with the evidence of events of commission of the offence;
2. The learned magistrate erred in law and facts by failing to consider that PW1’s evidence was unreliable;
3. The learned trial magistrate erred in law and facts by failing to consider that the prosecution failed to discharge burden of proof to the legal required standard;
4. The learned magistrate erred in law and facts by shifting the burden of proof to the appellant making the conviction unsafe; and
5. The learned magistrate erred in law and facts by failing to consider the appellant’s defence.
The prosecution case was that PW1 the complainant aged 16 years was at home sometimes in March, 2021 when the appellant told her that he loved her. The appellant told her to go to his house which was about two-minutes’ walk their home. She testified that she went to the house and had sex with the appellant till 12am. She went home and when her mother asked her where she was, she told her that she was at the appellant’s house. Her mother took her back to the appellant’s place. The following day the matter was reported at the police station. She was then taken to hospital for medical examination.
PW2 P.C Makori Concepta of Marereni police station testified that the complainant was brought to the station after being found in a man’s house. She conducted investigations and later charged the appellant with the offence of defilement.
PW3 Abdullahi Ibrahim a medical doctor working at Malindi Sub County hospital produced P3 Form which was filled by Dr. Rimba whom he had worked with for 7 years. He testified that the complainant was treated at Marereni Dispensary before being taken to Malindi Sub County hospital. The finding of the medical examination was that there was vaginal penetration.
PW4 Faida Ngala the mother of the complainant testified that on 27 th March, 2021 after super they went to sleep. Later the complainant’s brother came and told her that the complainant was not in the room. The complainant came home later at 1am. When questioned where she was, she said she was at the appellant’s house. She went to the appellant’s home and told his mother. She then took the complainant to the police station. In cross-examination she said she did not know where the complainant had gone but when questioned she said she was at the appellant’s house.
The appellant upon being placed on his defence he gave sworn statement. He said that the case was a frame up because of a grudge between the two families.
Both the appellant and respondent filed written submissions which I have carefully perused and considered.
This being the first appeal, the duty of this court is to analyze and evaluate the evidence adduced before the trial court and arrive at its own independent decision, of course noting that it did not have the opportunity to hear and see the witnesses testify in court. I am guided by the celebrated case of Okeno vs Republic (1972) E.A 32.
Further to the foregoing, it must be noted that it is the duty of the prosecution to prove the case against an accused person beyond reasonable doubt. This need not be overemphasized as it has been restated in numerous authorities among them the case of Stephen Nguli Mulili vs Republic (2014) e KLR.
With the foregoing in mind, I will consider whether the conviction of the appellant is supported by the evidence adduced by the prosecution before the trial court. In doing so it is prudent that I set out the ingredients of the offence of defilement.
The offence of defilement is a creature of Section 8(1) of the Sexual Offences Act which provides:
“Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 the court stated:
“That the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.”
In this appeal the appellant attacked the finding of the trial court that the charge was defective in the sense that the same indicated that the offence was committed on diverse dates of March, 2021 whereas the OB report indicated that the offence was committed on 26 th March, 2021. He further submitted that the evidence adduced was at variance with the charge. The respondent did not submit on this issue.
Section 134 of the Criminal Procedure Code provides:
“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
In the instant case, much as the charge indicated that the offence was committed on diverse dates, I am of the opinion that the narrative in the charge sheet was sufficient and the appellant cannot say to have been embarrassed or prejudiced in any way and thus the submission that the charge was defective is not merited.
The appellant further argued that the charges were not proved beyond reasonable doubt. As indicated hereinabove, the essential ingredients of the offence are the age of the complainant. The appellant was charged under Section 8(1) as read with Section 8(4) of the Sexual Offences Act. Section 8(4) of the Act provides for age bracket for purposes of sentence. In this case the prosecution produced birth certificate showing that the complainant was born on 2 nd May, 2005. The offence is alleged to have been committed in March, 2021. Thus, the age of the complainant was 16 years as at the time of the commission of the offence which is within the provision of Section 8(4) of the Sexual Offences Act. Therefore, the element of age was proved as required and the trial court cannot be faulted.
On the element of penetration, PW3 produced a P3 Form showing that there was penetration into the complainant’s genital organ namely vagina. This corroborates the complainant’s evidence that she had sexual intercourse with the appellant who called her to his house.
On the element of identification of the appellant as the assailant, the complainant was categorical in her evidence that the appellant called her to his house. The appellant was well known to the complainant. Further PW4 testified that when the complainant resurfaced at 1am she told her that she was from the appellant’s house. It is therefore clear that the appellant was identified as the assailant.
The appellant alluded to inconsistencies and contradiction on the prosecution case. In the case of Richard Munene vs Republic (2018) e KLR the court stated as follows regarding inconsistencies and contradictions:
“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to main issue in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”
In the instant case I have evaluated the evidence adduced by the prosecution witnesses and I find no inconsistencies or contradictions as alluded by the appellant. The prosecution case as presented by the witnesses was consistent that the appellant called the complainant to his house and they had sexual intercourse. The complainant herself whom the trial court believed told the court that she had sex with the appellant. Her mother who testified as PW3 told the court that when the complainant resurfaced after missing from 9pm to 1am she told her that she was at the appellant’s house. The medical evidence showed that there was vaginal penetration. The discrepancies alluded to by the appellant as to the report in the OB on the different in the name and age were not substantial so as to create doubt in the prosecution case.
Regarding the sentence the same was within the law and I have no reason to disturb the same.
The upshot is that the appeal lacks merit and the same is dismissed and the conviction and sentence of the trial court is hereby upheld.
Dated, signed and delivered virtually this 30 th day of June, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Malindi G.K Prison
Ms. Mutua for the Respondent appearing virtually
Ms. Otwo Court Assistant appearing virtually.
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