'
(Being an appeal against the conviction and 20 year sentence delivered by Hon. B. M Ekhubu, Principle Magistrate on 16th November 2021 in Thika Criminal S.O No. E011 of 2018)
A. Background
1. The Appellant being dissatisfied with the decision of the trial court which convicted and sentenced him to 20 years imprisonment for the offence of defilement contrary to Section 8(1) and (3) of the Sexual Offences Act No. 3 of 2006, has lodged this appeal.
2. The appeal is premised on the following amended grounds of appeal where the Appellant contends that the learned Trial Magistrate erred in law and fact by: failing to observe that the prosecution evidence on record was not proved beyond reasonable doubt; the Appellant plausible defence was not given due consideration; trial court relied on a single witness; prosecution evidence was riddled with contradictions and discrepancies leading to selective judgment; failed to observe that the identification was unsafe; the charge sheet was fatally defective; and that the prosecution evidence was in variance with the charges.
3. The particulars of the case were that on 28th January 2018 at Gatongora area of Ruiru within Kiambu County, the Appellant willfully and unlawfully, by use of the genital organ, namely penis, caused penetration into the genital organ, namely vagina, of PW, a child aged 13 years.
4. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that on 28th January 2018 at Gatongora area of Ruiru within Kiambu County, he intentionally and unlawfully caused contact with the genital organ, vagina, of a child P.W a child aged 13 years.
5. The Appellant pleaded not guilty and the trial commenced with the prosecution calling two (2) witnesses. When put on his defence, the Appellant gave his testimony but called no witness. The trial court proceeded to convict and sentenced him to 20 years imprisonment.
B. Trial Court
6. Before the trial court, PW1, PW stated that she knew the Appellant as Mwaura, and he used to be their neighbour but he moved. That on 28th January 2018 at around 1pm, she went to the Appellant’s house. That the Appellant asked her to cook for him. She cooked pancakes and when she was in the house the Appellant removed her clothes, then her underpants. He then removed his clothes and went on top of her and they had sex on his bed. That the Appellant inserted his penis into her vagina and she did not feel pain.
7. PW1 further testified that while they were in the house of the Appellant, her mother, accompanied by other people found them at around 2am and started beating the Appellant. They were then taken to hospital where she was examined and treated.
8. On cross examination, PW1 stated that she went to the Appellant’s house because she loved him, and that he was her boyfriend. That the day before, she was taken to the Appellant’s house by his sister and on 28th January 2018, the fateful day, she went by herself. She also stated that she told the Appellant that she was a student at Gatongora primary school. She confirmed having sex with the Appellant, and stated that she never had sex with any other man, and that she did not resist when she was being undressed but felt pain when they were having sex. She stated that she was born on 21st February 2005.
9. On re-examination she stated that she knew the accused person (Appellant herein) well as he was their neighbour. She also stated that they had sex and she wanted to have sex with him.
10. PW2, Dr. Wanjau stated that he filled the P3 form belonging to the complainant who was aged 13 years. That the complainant attended hospital on 29th January 2018. According to PW2, PW1 informed him that she had been kidnapped by a person known to her who then defiled her. That she was threatened with death if she screamed. On examination PW2 found that there was a tear in her labia majora, the hymen was perforated, there was no discharge and spermatozoa seen, HIV/AIDs test and syphilis tests were negative, urinalysis confirmed that she had inflammation, and she was treated. PW2 produced the P3 form as exhibit 1, treatment notes as exhibit P2, and the PRC form as exhibit 3.
11. Upon considering the prosecution evidence, the trial court found that the prosecution had established a prima facie case and placed the Appellant on his defence.
12. In his defence, the Appellant gave unsworn testimony. He stated that on 28th January 2018 he went home after fetching water. While in the house, someone knocked and when he opened he found that it was PW1 who used to be his neighbour. That PW1 entered the house and told him that she had come from church together with her mother and sibling. He stated that the complainant was hungry and stated cooking. That 30 minutes later she started eating. That he then heard a lot of commotion, went to check only to find the complainant’s mother with people who started to beat him. That PW1 then came out wondering why the group was beating him and later taken to Ruiru Police station. While at the station he demanded to be taken to hospital, held in custody for two days. He stated that he did not commit the offence.
13. The trial court considered the evidence on record, found the Appellant guilty and convicted him. He was sentenced to 20 years imprisonment. It is that decision that is challenged in this appeal.
C. The Appeal
14. The Appeal was canvassed by way of written submissions. The Appellant’s submissions were dated 18th September 2024, while the Respondent’s submissions were dated 23rd October 2024.
Appellant’s submissions
15. The Appellant submitted that the prosecution failed to provide him with all relevant materials such as copies of the witnesses statements and documentary evidence. That his rights under Article 50 of the Constitution as well as section 150 of the Criminal Procedure Code and section 146(4) of the Evidence Act were violated. He relied on the cases of Thomas Patrick Gilbert Cholmondely v Republic (2008) eKLR and George Ngodhe Juma & Two others vs the Attorney General Nairobi High Court(Misc Criminal Application No 345 of 2001) to support his argument that an accused person should be supplied with all witness statements and exhibits which prosecution intends to rely upon to enable him prepare for his defence and challenge the prosecution evidence.
16. It was the Appellant’s submission that PW1 evidence was contradictory on the occurrence of the event and cannot be cured by section 124 of the Evidence Act. That the inconsistencies were material and went to the core of the element of the offence of defilement, namely identification yet the trial court did not consider them. According to the Appellant the contradiction occurred between what the PW1 testified in court that she was in love with the Appellant and went to his house where they engaged in consensual sex and what she reported to PW2 that she was kidnapped by a person known to her who then defiled her, and that she was later locked in and threatened with death if she screams for help.
17. The Appellant also alleged that there was no mention of his name or description. All that was done was the victim pointing at him while in court as the person who defiled her. Further that there was no independent and credible witness to prove that the Appellant defiled the victim and that they were found together.
18. As to whether the victims age was proven, the Appellant stated that the prosecution failed to prove age. That all that was stated was that the victim was 13 years old and in grade 7. There was no age assessment or an independent witness to ascertain the victim’s age.
19. The Appellant submitted that the prosecution failed to rebut his alibi and that none of the witness called to court corroborated the prosecution’s evidence. He faulted the trial court for failing to take into account his evidence. He urged the Court to set aside the conviction.
20. On sentencing, it was submitted that the mandatory minimum sentence deprives judges of the flexibility to tailor punishment based on the facts of the case and that this court should vary and/or revise the sentence meted on him to a lesser sentence of ten years imprisonment starting from the day of arrest in accordance with section 333(2) of the Criminal Procedure Code.
Respondent’s submissions
21. In response, the Respondent submitted that the ingredients for the offence of defilement were all met. On age, while relying on the case of Mwalongo Chichoro Mwajembe v Republic (2016) eKLR it was submitted that age was proved by production of birth certificate which showed that the complainant was 13 years old when the offence was committed. On penetration, the Respondent made reference to the witness’s evidence and submitted that the evidence adduced during trial clearly proved the element of penetration to the required standards. Reference was made to the Court of Appeal case of Mark Oiruri Mose v Republic (2013) eKLR. On identification, it was submitted that from the evidence, the Appellant was well known to the victim and there was no possibility of mistaken identity.
22. Regarding inconsistencies and contradictions, it was submitted that there were no contradiction nor inconsistencies and even if they were they were minor and do not go to the root of the prosecution’s case thus the Court should ignore them.
23. As to whether there was violation of Article 50(2)(j) of the Constitution, the Respondent stated that the Appellant was always ready to proceed and extensively cross-examined the prosecution witnesses thus his rights under Article 50 of the Constitution were not infringed.
24. On the issue of reliance of a single witness evidence, the Respondent relied upon section 124 of the Evidence Act to urge that in sexual offences corroboration of the victim’s evidence is not mandatory as long as the court believes the victim is telling the truth and records the reasons for believing the victim. In this instance it was submitted that the victim’s evidence was not shaken in cross examination, and the trial court had no reason not to believe her. Further that her evidence was corroborated by that of PW2 which was sufficient to support the conviction. Further that the trial court considered the Appellant’s defence but did not in any way discredit or challenge evidence of the prosecution.
25. On sentence, it was submitted that the sentence was lawful and appropriate and thus the Court should not interfere with the same. In conclusion the prosecution urged the Court to find that it discharged its burden, proved its case beyond reasonable doubt and proceed to dismiss the appeal for lack of merit and uphold both the conviction and sentence.
D. Analysis and Determination
26. This being a first appeal, this Court has a duty to re-c0nsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusions. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. (See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009, David Njuguna Wairimu v. Republic [2010] eKLR).
27. Upon considering the Trial Court record, the petition of appeal and the parties’ submissions on record, I delimit the following issues for determination ;
(i) Whether the offence of defilement was proved and if the Appellant’s defence was ignored;
(ii) Whether the Appellant was denied a fair hearing;
(iii) Whether there were contradictions and inconsistencies in the prosecution case; and
(iv) Whether the sentence was harsh and excessive.
(i) Whether the offence of defilement was proved and whether the defence was ignored.
28. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as: proof of age of the victim; proof of penetration or indecent act; and identification of the perpetrator. On the issue of age, the charge sheet indicated that the minor was 13 years. PW1 testified that she born on 21st February 2005 and was 13 years and in grade 7.
29. The Appellant contends that age was not proved as no age assessment was done and that there was no independent witness who testified on the age of the victim. The Court of Appeal in Malindi in Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) held as follows: -
‘‘ …………..the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense.”
30. I have perused the record. The victim’s testimony was that she was 13 years old. That is the age that was stated in the charge sheet. The same age was what PW2 stated while testifying and producing the P3 forms. This evidence was never rebutted and/or challenged by the Appellant in cross-examination. Consequently, I find that there was no mandatory requirement for carrying out of an age assessment to ascertain the age of the complainant. The Appellant has not tendered what could be considered as the alternative age or the right age of the complainant contrary to what is on record. Consequently, I find that the element of age was properly proved in this matter.
31. Turning to penetration, I note that the Appellant has not impugned this ingredient. However, evaluating the evidence of the complainant, PW1, it leaves no doubt that she narrated how she went to the Appellant’s house and the Appellant had sex with her and they were found in the house with her mother. PW2 testified that the complainant was examined the following day and it was confirmed that she had been penetrated. Consequently, the second ingredient of penetration was proved.
32. Regarding identity of the assailant, the Appellant alleges that PW1 contradicted herself when she stated in court that they were in love with the Appellant and that she went to his house and had consensual sex and then she told PW2 that she was kidnapped and defiled by a known person who threatened her with death.
33. Outrightly, I find that whether the sexual experience was consensual or not is immaterial. Defilement is having sexual intercourse with a minor. The law states that a minor lacks capacity to consent, hence consent in defilement cases is immaterial. Be that as it may, whether it was consensual or not, even when she spoke to PW2, PW1 was consistent that the perpetrator was a “known” person.
34. Looking at the record, the Appellant was a neighbour to the complainant and in his own defence, he stated that the complainant went to his house, cooked food and started eating. No stranger will allow someone to come to his house and cook. The upshot is that the identification was that of recognition rather than identification of a stranger. The Appellant was a person well known to the complainant and as both the complainant and the Appellant stated in their testimonies, she went to the Appellant’s house during the day (after church). There can be no questions of visibility. I find that identification was proper.
35. Ultimately, I find that the prosecution ably discharged its duty and proved its case to the required standard.
(ii) Whether the Appellant was denied a fair hearing
36. In urging this ground, the Appellant submitted that the prosecution failed to provide him with all relevant materials such as copies of the witnesses statements and documentary evidence, hence violating his rights under Article 50 of the Constitution as well as section 150 of the Criminal Procedure Code and section 146(4) of the Evidence Act were violated.
37. It is trite law that an accused person is to be supplied with all evidence the prosecution intends to use against him/her prior so that one prepares his defence. I have looked at the record and I find that the trial court directed the appellant to be supplied with witness statement and nowhere did the Appellant raised before the trial court that he was not supplied with witness statements. I agree with the Respondent that the Appellant stated that he was ready to proceed and during the hearing, he ably cross-examined all the witnesses. Ultimately, he made a choice on how to present his defence, choosing to give an un-sworn testimony. I find that no rights of his were violated.
(iii) Whether there were contradictions and inconsistencies in the prosecution case
38. The Appellant alleged that there were contradictions and inconsistencies in the testimonies of the prosecution witnesses. In particular, he took issue with the testimony of PW1, that she stated that she went to the appellant’s house and they had consensual sex, yet she had told PW2 that she was kidnapped by a known person who defiled her and threatened her with death.
39. It is trite law that not all contradictions and irregularities are fatal to the prosecution case. The discrepancy should be material enough as to go to the core of the case. The Court of Appeal in the case of Joseph Maina Mwangi v Republic [2000] eKLR) while dealing with a similar question held as follows:
“The witnesses were not ad idem on who recovered the expended cartridges from the scene of the first set of robberies and, likewise, on the number of bullets which were in the magazine which was allegedly recovered from the appellant. In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 CPC, viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.”
40. I find the alleged inconsistency very remote as not to prejudice the Appellant. I have already addressed this issue above, but I will reiterate that all through, the Appellant knew the offence/charges he was facing. That he had defiled a 13 years old girl. The alleged inconsistency, which I have negated above, occasioned no prejudice at all. Hence this ground is dismissed as lacking merit.
41. The upshot is that the conviction was safe and this Court find no reason to interfere with it.
(iv) Whether the sentence was harsh and excessive
42. Turning to sentence, the Appellant was charged, tried, convicted and sentenced under section 8(3) of the Sexual Offences Act, for defiling a child aged 13 years old. While the Appellant submits that the sentence was excessive and seeks a 10 years imprisonment sentence, I find no basis to interfere with the sentence. This is because the issue of sentences under the Sexual Offences Act was settled by the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR). The apex Court found and held that the minimum mandatory sentences were constitutional, hence legitimate.
43. Consequently, the Appellant having been sentenced to the minimum sentence of 20 years, that sentence is legal. He has not given this Court any legitimate and legal reason to interfere with the sentence meted out by the Trial Court, the same having been within the law. Consequently, the same is upheld.
44. The upshot is that, this appeal lacks merit and the same is dismissed save that the period spent in custody be considered in accordance with section 333(2) of the Criminal Procedure Code.
Orders accordingly.
Dated, signed and delivered at Machakos this 9th day of October, 2025.
'
(Being an appeal against the conviction and 20 year sentence delivered by Hon. B. M Ekhubu, Principle Magistrate on 16th November 2021 in Thika Criminal S.O No. E011 of 2018)
A. Background
1. The Appellant being dissatisfied with the decision of the trial court which convicted and sentenced him to 20 years imprisonment for the offence of defilement contrary to Section 8(1) and (3) of the Sexual Offences Act No. 3 of 2006, has lodged this appeal.
2. The appeal is premised on the following amended grounds of appeal where the Appellant contends that the learned Trial Magistrate erred in law and fact by: failing to observe that the prosecution evidence on record was not proved beyond reasonable doubt; the Appellant plausible defence was not given due consideration; trial court relied on a single witness; prosecution evidence was riddled with contradictions and discrepancies leading to selective judgment; failed to observe that the identification was unsafe; the charge sheet was fatally defective; and that the prosecution evidence was in variance with the charges.
3. The particulars of the case were that on 28th January 2018 at Gatongora area of Ruiru within Kiambu County, the Appellant willfully and unlawfully, by use of the genital organ, namely penis, caused penetration into the genital organ, namely vagina, of PW, a child aged 13 years.
4. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that on 28th January 2018 at Gatongora area of Ruiru within Kiambu County, he intentionally and unlawfully caused contact with the genital organ, vagina, of a child P.W a child aged 13 years.
5. The Appellant pleaded not guilty and the trial commenced with the prosecution calling two (2) witnesses. When put on his defence, the Appellant gave his testimony but called no witness. The trial court proceeded to convict and sentenced him to 20 years imprisonment.
B. Trial Court
6. Before the trial court, PW1, PW stated that she knew the Appellant as Mwaura, and he used to be their neighbour but he moved. That on 28th January 2018 at around 1pm, she went to the Appellant’s house. That the Appellant asked her to cook for him. She cooked pancakes and when she was in the house the Appellant removed her clothes, then her underpants. He then removed his clothes and went on top of her and they had sex on his bed. That the Appellant inserted his penis into her vagina and she did not feel pain.
7. PW1 further testified that while they were in the house of the Appellant, her mother, accompanied by other people found them at around 2am and started beating the Appellant. They were then taken to hospital where she was examined and treated.
8. On cross examination, PW1 stated that she went to the Appellant’s house because she loved him, and that he was her boyfriend. That the day before, she was taken to the Appellant’s house by his sister and on 28th January 2018, the fateful day, she went by herself. She also stated that she told the Appellant that she was a student at Gatongora primary school. She confirmed having sex with the Appellant, and stated that she never had sex with any other man, and that she did not resist when she was being undressed but felt pain when they were having sex. She stated that she was born on 21st February 2005.
9. On re-examination she stated that she knew the accused person (Appellant herein) well as he was their neighbour. She also stated that they had sex and she wanted to have sex with him.
10. PW2, Dr. Wanjau stated that he filled the P3 form belonging to the complainant who was aged 13 years. That the complainant attended hospital on 29th January 2018. According to PW2, PW1 informed him that she had been kidnapped by a person known to her who then defiled her. That she was threatened with death if she screamed. On examination PW2 found that there was a tear in her labia majora, the hymen was perforated, there was no discharge and spermatozoa seen, HIV/AIDs test and syphilis tests were negative, urinalysis confirmed that she had inflammation, and she was treated. PW2 produced the P3 form as exhibit 1, treatment notes as exhibit P2, and the PRC form as exhibit 3.
11. Upon considering the prosecution evidence, the trial court found that the prosecution had established a prima facie case and placed the Appellant on his defence.
12. In his defence, the Appellant gave unsworn testimony. He stated that on 28th January 2018 he went home after fetching water. While in the house, someone knocked and when he opened he found that it was PW1 who used to be his neighbour. That PW1 entered the house and told him that she had come from church together with her mother and sibling. He stated that the complainant was hungry and stated cooking. That 30 minutes later she started eating. That he then heard a lot of commotion, went to check only to find the complainant’s mother with people who started to beat him. That PW1 then came out wondering why the group was beating him and later taken to Ruiru Police station. While at the station he demanded to be taken to hospital, held in custody for two days. He stated that he did not commit the offence.
13. The trial court considered the evidence on record, found the Appellant guilty and convicted him. He was sentenced to 20 years imprisonment. It is that decision that is challenged in this appeal.
C. The Appeal
14. The Appeal was canvassed by way of written submissions. The Appellant’s submissions were dated 18th September 2024, while the Respondent’s submissions were dated 23rd October 2024.
Appellant’s submissions
15. The Appellant submitted that the prosecution failed to provide him with all relevant materials such as copies of the witnesses statements and documentary evidence. That his rights under Article 50 of the Constitution as well as section 150 of the Criminal Procedure Code and section 146(4) of the Evidence Act were violated. He relied on the cases of Thomas Patrick Gilbert Cholmondely v Republic (2008) eKLR and George Ngodhe Juma & Two others vs the Attorney General Nairobi High Court(Misc Criminal Application No 345 of 2001) to support his argument that an accused person should be supplied with all witness statements and exhibits which prosecution intends to rely upon to enable him prepare for his defence and challenge the prosecution evidence.
16. It was the Appellant’s submission that PW1 evidence was contradictory on the occurrence of the event and cannot be cured by section 124 of the Evidence Act. That the inconsistencies were material and went to the core of the element of the offence of defilement, namely identification yet the trial court did not consider them. According to the Appellant the contradiction occurred between what the PW1 testified in court that she was in love with the Appellant and went to his house where they engaged in consensual sex and what she reported to PW2 that she was kidnapped by a person known to her who then defiled her, and that she was later locked in and threatened with death if she screams for help.
17. The Appellant also alleged that there was no mention of his name or description. All that was done was the victim pointing at him while in court as the person who defiled her. Further that there was no independent and credible witness to prove that the Appellant defiled the victim and that they were found together.
18. As to whether the victims age was proven, the Appellant stated that the prosecution failed to prove age. That all that was stated was that the victim was 13 years old and in grade 7. There was no age assessment or an independent witness to ascertain the victim’s age.
19. The Appellant submitted that the prosecution failed to rebut his alibi and that none of the witness called to court corroborated the prosecution’s evidence. He faulted the trial court for failing to take into account his evidence. He urged the Court to set aside the conviction.
20. On sentencing, it was submitted that the mandatory minimum sentence deprives judges of the flexibility to tailor punishment based on the facts of the case and that this court should vary and/or revise the sentence meted on him to a lesser sentence of ten years imprisonment starting from the day of arrest in accordance with section 333(2) of the Criminal Procedure Code.
Respondent’s submissions
21. In response, the Respondent submitted that the ingredients for the offence of defilement were all met. On age, while relying on the case of Mwalongo Chichoro Mwajembe v Republic (2016) eKLR it was submitted that age was proved by production of birth certificate which showed that the complainant was 13 years old when the offence was committed. On penetration, the Respondent made reference to the witness’s evidence and submitted that the evidence adduced during trial clearly proved the element of penetration to the required standards. Reference was made to the Court of Appeal case of Mark Oiruri Mose v Republic (2013) eKLR. On identification, it was submitted that from the evidence, the Appellant was well known to the victim and there was no possibility of mistaken identity.
22. Regarding inconsistencies and contradictions, it was submitted that there were no contradiction nor inconsistencies and even if they were they were minor and do not go to the root of the prosecution’s case thus the Court should ignore them.
23. As to whether there was violation of Article 50(2)(j) of the Constitution, the Respondent stated that the Appellant was always ready to proceed and extensively cross-examined the prosecution witnesses thus his rights under Article 50 of the Constitution were not infringed.
24. On the issue of reliance of a single witness evidence, the Respondent relied upon section 124 of the Evidence Act to urge that in sexual offences corroboration of the victim’s evidence is not mandatory as long as the court believes the victim is telling the truth and records the reasons for believing the victim. In this instance it was submitted that the victim’s evidence was not shaken in cross examination, and the trial court had no reason not to believe her. Further that her evidence was corroborated by that of PW2 which was sufficient to support the conviction. Further that the trial court considered the Appellant’s defence but did not in any way discredit or challenge evidence of the prosecution.
25. On sentence, it was submitted that the sentence was lawful and appropriate and thus the Court should not interfere with the same. In conclusion the prosecution urged the Court to find that it discharged its burden, proved its case beyond reasonable doubt and proceed to dismiss the appeal for lack of merit and uphold both the conviction and sentence.
D. Analysis and Determination
26. This being a first appeal, this Court has a duty to re-c0nsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusions. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. (See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009, David Njuguna Wairimu v. Republic [2010] eKLR).
27. Upon considering the Trial Court record, the petition of appeal and the parties’ submissions on record, I delimit the following issues for determination ;
(i) Whether the offence of defilement was proved and if the Appellant’s defence was ignored;
(ii) Whether the Appellant was denied a fair hearing;
(iii) Whether there were contradictions and inconsistencies in the prosecution case; and
(iv) Whether the sentence was harsh and excessive.
(i) Whether the offence of defilement was proved and whether the defence was ignored.
28. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as: proof of age of the victim; proof of penetration or indecent act; and identification of the perpetrator. On the issue of age, the charge sheet indicated that the minor was 13 years. PW1 testified that she born on 21st February 2005 and was 13 years and in grade 7.
29. The Appellant contends that age was not proved as no age assessment was done and that there was no independent witness who testified on the age of the victim. The Court of Appeal in Malindi in Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) held as follows: -
‘‘ …………..the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense.”
30. I have perused the record. The victim’s testimony was that she was 13 years old. That is the age that was stated in the charge sheet. The same age was what PW2 stated while testifying and producing the P3 forms. This evidence was never rebutted and/or challenged by the Appellant in cross-examination. Consequently, I find that there was no mandatory requirement for carrying out of an age assessment to ascertain the age of the complainant. The Appellant has not tendered what could be considered as the alternative age or the right age of the complainant contrary to what is on record. Consequently, I find that the element of age was properly proved in this matter.
31. Turning to penetration, I note that the Appellant has not impugned this ingredient. However, evaluating the evidence of the complainant, PW1, it leaves no doubt that she narrated how she went to the Appellant’s house and the Appellant had sex with her and they were found in the house with her mother. PW2 testified that the complainant was examined the following day and it was confirmed that she had been penetrated. Consequently, the second ingredient of penetration was proved.
32. Regarding identity of the assailant, the Appellant alleges that PW1 contradicted herself when she stated in court that they were in love with the Appellant and that she went to his house and had consensual sex and then she told PW2 that she was kidnapped and defiled by a known person who threatened her with death.
33. Outrightly, I find that whether the sexual experience was consensual or not is immaterial. Defilement is having sexual intercourse with a minor. The law states that a minor lacks capacity to consent, hence consent in defilement cases is immaterial. Be that as it may, whether it was consensual or not, even when she spoke to PW2, PW1 was consistent that the perpetrator was a “known” person.
34. Looking at the record, the Appellant was a neighbour to the complainant and in his own defence, he stated that the complainant went to his house, cooked food and started eating. No stranger will allow someone to come to his house and cook. The upshot is that the identification was that of recognition rather than identification of a stranger. The Appellant was a person well known to the complainant and as both the complainant and the Appellant stated in their testimonies, she went to the Appellant’s house during the day (after church). There can be no questions of visibility. I find that identification was proper.
35. Ultimately, I find that the prosecution ably discharged its duty and proved its case to the required standard.
(ii) Whether the Appellant was denied a fair hearing
36. In urging this ground, the Appellant submitted that the prosecution failed to provide him with all relevant materials such as copies of the witnesses statements and documentary evidence, hence violating his rights under Article 50 of the Constitution as well as section 150 of the Criminal Procedure Code and section 146(4) of the Evidence Act were violated.
37. It is trite law that an accused person is to be supplied with all evidence the prosecution intends to use against him/her prior so that one prepares his defence. I have looked at the record and I find that the trial court directed the appellant to be supplied with witness statement and nowhere did the Appellant raised before the trial court that he was not supplied with witness statements. I agree with the Respondent that the Appellant stated that he was ready to proceed and during the hearing, he ably cross-examined all the witnesses. Ultimately, he made a choice on how to present his defence, choosing to give an un-sworn testimony. I find that no rights of his were violated.
(iii) Whether there were contradictions and inconsistencies in the prosecution case
38. The Appellant alleged that there were contradictions and inconsistencies in the testimonies of the prosecution witnesses. In particular, he took issue with the testimony of PW1, that she stated that she went to the appellant’s house and they had consensual sex, yet she had told PW2 that she was kidnapped by a known person who defiled her and threatened her with death.
39. It is trite law that not all contradictions and irregularities are fatal to the prosecution case. The discrepancy should be material enough as to go to the core of the case. The Court of Appeal in the case of Joseph Maina Mwangi v Republic [2000] eKLR) while dealing with a similar question held as follows:
“The witnesses were not ad idem on who recovered the expended cartridges from the scene of the first set of robberies and, likewise, on the number of bullets which were in the magazine which was allegedly recovered from the appellant. In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 CPC, viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.”
40. I find the alleged inconsistency very remote as not to prejudice the Appellant. I have already addressed this issue above, but I will reiterate that all through, the Appellant knew the offence/charges he was facing. That he had defiled a 13 years old girl. The alleged inconsistency, which I have negated above, occasioned no prejudice at all. Hence this ground is dismissed as lacking merit.
41. The upshot is that the conviction was safe and this Court find no reason to interfere with it.
(iv) Whether the sentence was harsh and excessive
42. Turning to sentence, the Appellant was charged, tried, convicted and sentenced under section 8(3) of the Sexual Offences Act, for defiling a child aged 13 years old. While the Appellant submits that the sentence was excessive and seeks a 10 years imprisonment sentence, I find no basis to interfere with the sentence. This is because the issue of sentences under the Sexual Offences Act was settled by the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR). The apex Court found and held that the minimum mandatory sentences were constitutional, hence legitimate.
43. Consequently, the Appellant having been sentenced to the minimum sentence of 20 years, that sentence is legal. He has not given this Court any legitimate and legal reason to interfere with the sentence meted out by the Trial Court, the same having been within the law. Consequently, the same is upheld.
44. The upshot is that, this appeal lacks merit and the same is dismissed save that the period spent in custody be considered in accordance with section 333(2) of the Criminal Procedure Code.
Orders accordingly.
Dated, signed and delivered at Machakos this 9th day of October, 2025.
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