(Being an appeal against the conviction and sentence by Hon. R.M. Amwayi (PM) in Kaloleni Principal Magistrate’s Court (SO) Case No. E023 of 2024)
1. The appellant herein Hamisi Ngalaa Chuphi, was convicted on 19 August 2024 and sentenced to 15 years imprisonment by the Principal Magistrate’s Court at Kaloleni for the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that on diverse dates between the month of April 2024 and 25 May 2024 at Miyani Village Kinangoni location in Kaloleni Sub-location within Kilifi County, intentionally and unlawfully caused his genital organ namely penis to penetrate the female genital organ namely vagina of F.K.G a child aged 17 years. Having been convicted on the principal charge, the court did not make any finding on the alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act.
2. A background of the case is that on 30 May 2022, the Appellant was arraigned and charged with the offence of defilement contrary to Section 8 (1) and (4) of the Sexual Offences Act . He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the said Act. He denied the charges prompting the trial in which the prosecution to called five (5) witnesses.
3. The case as presented by the prosecution was that on 7 May 2024 at about 11a.m, the appellant who was known to the complainant F.K.G (PW2), went to her home in a motorcycle, found her alone and seduced her. They both left and went to the appellant's house which she described as a single room with a veranda, where they engaged in sexual intercourse. Afterwards, he took her home. On 21 May 2024, the appellant went to the complainant’s, found her with her mother PW3, informed her that he needed the complainant to accompany him to the shops where he would buy some foodstuff and have the complainant return with them. PW3 agreed and the two left using the appellant's motorcycle.
4. The Appellant, however, took her to his sister’s house in Bamburi, introduced her to his brother as his wife, and they spent the night there. The next morning, she left with the appellant, went to Miyani where he rented a house, they stayed there for two days during which time they had sexual intercourse twice. All this while, he introduced her as his wife. On 25 May 2024, at around 9pm, police officers went to the house, found the two of them, arrested them and took them to Gotani police station. Her mother, PW3 Njina Chidulu Chitozi went and found her at the police station and escorted her to Mariakani hospital for medical examination.It was her testimony that she told the appellant she was 17 years old.
5. PW3, the complainant’s mother testified that she knew the appellant since 2024 since they lived in the same area. On 21 May 2024, the appellant went to their home, found her with the complainant, requested to go with the complainant so that he could buy her cooking oil and wheat flour. She agreed and the two left using the appellant's motorcycle. They did not return prompting her to search for them. On 23 May 2024, she reported the matter to the assistant chief. She was later called by the police who informed her that the complainant had been found and was in Gotani police station. She went there and found the appellant and complainant at the said station. They were later referred to the hospital where the complainant was examined.
6. PW4, Scolastica Zawadi Kazungu, the assistant chief of Miyani sub-location testified that on 25 May 2025, she received a report that there was a tenant who was living with a minor. She informed the OCS Gotani police station who together with other police officers, went to the house, found the appellant and complainant, arrested them and escorted to the said police station. PW1, Mwangolo Chigulu, a senior clinical officer at Mariakani hospital examined the complainant on 26 May 2024 and found that her hymen was missing and that her sphincter vaginal muscles were loose leading to the conclusion that there was vaginal penetration. He prepared a P3 form, treatment notes, Post Rape Care form, lab request and a copy of her birth certificate which he produced as exhibit 1 to 5 respectively.
7. PW5, PC Justus Kimanzi attached to Gotani police station investigated the case. He testified 25 May 2024 at 8pm, he was at the police station when the assistant chief of Miyani (PW4) reported that there was a man living with a minor. He accompanied by PW4 went to the scene where they found the appellant and the complainant. He arrested them and escorted them to the police station. He later on called the complainant’s mother, PW3, filled the P3 form and referred the complainant to Mariakani hospital where she was examined by PW1. He thereafter charged the appellant for defilement.
8. At the close of the prosecution’s case, the appellant was placed on his defence where he testified on oath. He denied committing the offence stating that he had approached the complainant’s mother, PW3 who was his aunt to allow the complainant take car of his daughter since his wife had left, which she, PW3 agreed. Later on he went with the complainant to Mombasa where he took her to his sister before they left and went to Miyani where he opened up a kiosk and they stayed for three (3) days. He was subsequently arrested at 8pm and taken to the police station where he was charged. He stated that he knew the complainant was 17 years old.
9. At the conclusion of the trial, judgment was rendered where the appellant was found guilty, convicted and sentenced to 15 years imprisonment. Aggrieved by the finding, conviction and sentence by the trial court, he filed the instant appeal where he raised the following grounds:
i. THAT the learned trial court erred in law and fact by placing reliance on the evidence of a single witness.
ii. THAT the learned trial court erred in law and fact by failing to find that the prosecution did not prove some essential ingredients that constitutes the offence.
iii. THAT the learned trial court erred in law and fact by failing to find that identification as an ingredient was not property proved.
iv. THAT the learned trial court erred in law and fact by failing to find that penetration was not proved.
v. THAT the learned trial court erred in law and fact by failing to find that the appellant was exonerated by Section 8 (5) of the Sexual Offences Act.
vi. THAT the learned trial court erred in law and fact by failing to find that age of the complainant as an ingredient of the offence was not proved and that she was an adult.
vii. THAT the learned trial court erred in law and fact by failing to consider the appellant’s defence which exonerated him.
viii. THAT the learned trial court misdirected itself by failing to find the minimum mandatory sentences are unconstitutional and thus failed to impose an appropriate sentence in view of the facts of the case.
10. The appeal was argued by way of written submissions which were duly filed and relied on by both parties as directed by court. The appellant appeared in person while the Respondent represented by M/s Ngina Mutua learned Counsel.
11. On the issue of penetration, the appellant submitted that there was no evidence to show that he had penetrated the complainant. He contended that whereas the medical officer, PW1, testified that there was evidence of penetration, he did not state who had penetrated the complainant. He argued that a broken hymen alone cannot be evidence of penetration since hymen can break in many other ways apart from through penile insertion. He further submitted that no evidence such as the alleged mat used during sex as stated by the complainant was produced as evidence and hence penetration was not proved.
12. On the issue of age of the complainant, the appellant challenged the production and authenticity of the birth certificate by PW1 stating that he did not state how he came into possession of the birth certificate. He submitted that under Section 77 (1) and (2) of the Evidence Act, its only a public officer working in government who could have produced the document. He further argued that no document was produced to show that the complainant was a school going child as she claimed in her evidence.
13. He further submitted that by dint of section 43 of the Sexual Offences Act, an act is intentional and unlawful if it is committed under coercive circumstances or under false pretence or through fraudulent means to persons who are incapable of understanding the nature of the act. He argued that none of these circumstances were proved but instead the complainant voluntarily agreed to accompany the appellant.
14. He also submitted that he believed that the complainant was above 18 years and hence was entitled to the defence under Section 8 (5) of the Sexual Offences Act. He denied that he had asked the complainant above her age or that she informed him that she was a school going child stating that no document was adduced in court to show that she was still in school as alleged.
15. He submitted that the court did not comply with sections 216 and 329 of the Criminal Procedure Code by failing to call for and consider mitigating circumstances before passing sentence. This according to him, violated his right to fair trial as guaranteed under Article 50 of the Constitution. He urged the court to allow the appeal and acquit him.
16. The Respondent opposed the appeal and relied on its written submissions. On the allegation that the trial court erred by placing reliance on the evidence of a single witnesses, the Respondent submitted that under Section 124 of the Evidence Act, in a sexual offence case, a conviction can be based on the evidence of a single witness. However, in this case, PW2’s evidence was duly corroborated by other witnesses and documentary evidence.
17. As regards proof of the offence, the Respondent submitted that all ingredients of the offence, being age of the complainant, penetration and positive identification of the perpetrator were duly proved.
18. On the allegation that the appellant’s defence was not considered, the Respondent submitted that the judgment clearly shows that the trial court duly considered the appellants defence but found it insufficient to dislodge the overwhelming evidence in support of the charge.
19. The Respondent further submitted that mandatory minimum sentences under the Sexual Offences Act are proper and constitutional as determined and affirmed by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR). I t urged the court to dismiss the appeal.
Analysis and determination
20. This being the first appeal, the duty of this court, as set out in Okeno Vs R [1972] EA 32 and affirmed in various decisions including the case of Mark Oiruri Mose vs Republic (2013) eKLR, is to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses.
21. The court of appeal, in Kiilu & Another V Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
22. Having considered the grounds of appeal, the evidence adduced in the lower court, the trial court’s judgement, the record of proceedings and the rival submissions of parties, I find the main issues for determination to be;
i. Whether the offence of defilement was proved beyond reasonable doubt.
ii. Whether the appellant established the defence under Section 8 (5) of the Sexual Offences Act.
iii. Whether the sentence imposed was proper, constitutional and valid.
i. Whether the offence of defilement was proved beyond reasonable doubt
23. 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 . Additionally, Section 8 (5) provides a defence to a person charged under that section. The said law provides;
“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 sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if -
(a) it is proved that such child, deceived the accused person into
believing that he or she was over the age of eighteen years at
the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the
age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”
24. The specific ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration; age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani vs Republic , Criminal Appeal No. 72 of 2013.
25. Age of the victim is a critical ingredient of the offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years.
26. The appellant submitted that age as an ingredient was not proved beyond reasonable doubt. He challenged the production and authenticity of the birth certificate by PW1 stating that he did not state how he came into possession of the birth certificate. He further submitted that under Section 77 (1) and (2) of the Evidence Act, its only a public officer working in government who could have produced the document. He further contended that no document was produced to show that the complainant was a school going child as she claimed in her evidence.
27. The Respondent submitted that age was proved by the complainant’s birth certificate which was produced as exhibit 5. That the birth certificate showed that she was 17 years old. Reliance was placed on the case of Francis Omuroni vs Uganda Court of Appeal Criminal Case No. 2 of 2000 where the court held that a birth certificate can be used as proof a victim’s age.
28. The High Court in Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) held;
“Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR ), the Court of Appeal stated that: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
29. As correctly stated by the court in Francis Omuroni vs Uganda (supra) age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See also Thomas Mwambu Wenyi vsRepublic Criminal Appeal No. 21 of 2015 [2017] .
30. In this case, the record shows that PW2 the complainant testified that she was 17 years old a position she restated during cross examination. She further stated that she told the appellant that she was 17 years old. PW3 the complainant’s mother, also testified that the complainant was 17 years old and her 7 th born. This was confirmed by her birth certificate produced as exhibit 5 by PW1 which shows that she was born on 7 September 2006 and hence 17 years when the offence occurred.
31. The appellant challenged the production of the birth certificate by PW1. However, the appellant did not object to its production during hearing. He was represented by Mr Kiseu learned counsel who was present in court on 10 June 2024 when PW1 testified and produced the exhibit. Having been properly produced, it is evidence. Article 159 (2) (d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities.
32. In my view, the production of the document is a procedural matter that was dealt with by the trial court. Besides, as laid out in Francis Omuroni vs Uganda, a ge can be proved in a number of other ways, including testimony by the complainant or parents. In this case, both the complainant and her mother gave the age of the complainant. I find this ingredient to have been proved beyond reasonable doubt.
33. On the issue of penetration, he appellant submitted that there was no evidence to show that he had penetrated the complainant. He contended that whereas the medical officer, PW1, testified that there was evidence of penetration, he did not state who had penetrated the complainant. He argued that a broken hymen alone cannot be evidence of penetration since hymen can break in many other ways apart from through penile insertion. He further submitted that no evidence such as the alleged mat used during sex as stated by the complainant was produced as evidence and hence penetration was not proved.
34. He further submitted that by dint of section 43 of the Sexual Offences Act, an act is intentional and unlawful if it is committed under coercive circumstances or under false pretence or through fraudulent means to persons who are incapable of understanding the nature of the act. He argued that none of these circumstances were proved but instead the complainant voluntarily agreed to accompany the appellant.
35. Before I delve into the evidence, I will first address the issue concerning Section 43 of the Sexual Offences Act . Section 43 of the said Act describes circumstances in which an act is deemed to be intentional and unlawful. These instances include use of coercion, fraud or where a person in incapable of appreciating the nature of the act constituting the offence. Under Section 43 (4) (f), a child, that is a person under the age of 18 years, in incapable of consenting. Thus in a case involving a minor, such as this one, it is immaterial that she may have willingly agreed to the sexual act since such a person is incapable of consent.
36. Having determined that, I will proceeded and consider whether penetration as an ingredient was proved. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person .
37. “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
38. To prove penetration, it must be established that the appellant inserted his penis into the vagina of the complainant either partially or completely.
39. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Cr iminal Appeal No. 35 of 1995 . Consequently, by dint of Section 124 of the Evidence Act, an accused can be convicted on the sole evidence of a victim provided that the trial court complies with the requirements under the section.
40. As regards the requirement of medical evidence, the court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
41. The complainant, PW2 testified that on 7 May 2024 at about 11a.m, the appellant who was known to the complainant F.K.G (PW2), went to her home in a motorcycle, found her alone and seduced her. They both left and went to the appellant's house which she described as a single room with a veranda, where they engaged in sexual intercourse. Afterwards, he took her home. On 21 May 2024, the appellant went to the complainant’s, found her with her mother PW3, informed her that he needed the complainant to accompany him to the shops where he would buy some foodstuff and have the complainant return with them. PW3 agreed and the two left using the appellant's motorcycle. The Appellant, however, took her to his sister’s house in Bamburi, introduced her to his brother as his wife, and they spent the night there. The next morning, she left with the appellant, went to Miyani where he rented a house, they stayed there for two days during which time they had sexual intercourse twice.
42. PW2 evidence was corroborated by PW3, her mother whose testimony confirmed the facts as stated by PW2. Additionally, PW4 and PW5’s evidence provided further corroboration on the account of events as described by PW2 which eventually led to the arrest of the appellant. Medical examination by PW1 and the evidence produced provides further proof that the was penetrative sexual intercourse as described by PW2. Whereas it is true that the absence of a hymen alone is not evidence of sexual penetration, the evidence and facts of the case prove that there was vaginal penetration through sex. The court has also considered the appellant’s defence and note that he largely corroborates the facts and account as stated by PW2 save for the denial that no sex took place. Having evaluated the evidence on record, the court finds that the element of penetration was proved beyond reasonable doubt.
43. On the issue of identification, Identification can be establish in various ways including through recognition. Recognition is generally stronger than identification of a stranger. In Anjononi & Others vs Republic [1980] KLR 59 , the Court of Appeal stated:
“Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger.”
44. PW2 testified that she identified the appellant the one she had sexual intercourse with. He was well known to her and the incident happened over a long stretch of time. They had lived together for more than three (3) days and hence there was no possibility of mistaken identity. PW3, PW4 and PW5 provided further corroboration. As stated in Anjononi & Others vs Republic (supra ), identification in this case was by recognition which is more reliable and assured that identification of a stranger. The court is satisfied that the appellant was properly identified as the assailant.
ii. Whether the appellant established the defence under Section 8 (5) of the Sexual Offences Act.
45. Turning to the second issue, the appellant submitted that he believed that the complainant was above 18 years and hence was entitled to the defence under Section 8 (5) of the Sexual Offences Act. He denied that he had asked the complainant about her age or that she informed him that she was a school going child stating that no document was adduced in court to show that she was still in school as alleged.
46. As stated herein before, Section 8 (5) of the Act provides a defence to the appellant if it is proved that the complainant, being a child, deceived him that she was over 18 years old and he reasonably believed so. Section 8 (6) requires a court to determine this having regard to all circumstances of the case, including any steps the accused took to ascertain the age of the complainant. If proved, an accused is entitled to an acquittal.
47. PW2 the complainant testified that the appellant asked her age and she told him she was 17 years old, a position she maintained during cross-examination. The appellant stated during cross examination that he knew the complainant was 17 years old. He stated as follows, “ the complainant is well known to me. She asked me to go with her. I know she is aged 17 years old….” . At no point did he state that she told him she was over 18 years old or he knew or believed that she was 18 years old. This ground fails.
iii. Whether the sentence imposed was proper, constitutional and valid
48. The appellant submitted that the court did not comply with sections 216 and 329 of the Criminal Procedure Code by failing to call for and consider mitigating circumstances before passing sentence. This according to him, violated his right to fair trial as guaranteed under Article 50 of the Constitution. In his grounds of appeal, he contended that the minimum mandatory sentences under the Sexual Offences Act are unconstitutional. However, no submissions were made on this point during hearing.
49. Respondent argued that mandatory minimum sentences under the Sexual Offences Act are proper and constitutional as determined and affirmed by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR).
50. Indeed the issue of mandatory minimum sentences has been determined by the Supreme Court. The Supreme Court in Republic vs Joshua Gichuki Mwangi (2024) JELR112261 (SC) held that the Minimum Sentences set out in Section 8 of the Sexual Offences Act are lawful. This followed the clarification in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (supra) where the court restricted its decision to murder cases under Section 203 and 204 of the Penal Code. Despite this and for good reasons, this matter continues to attract divergent opinions. However, the law as it is, is that mandatory minimum sentences under the Sexual Offences Act are valid and continue to apply.
51. Turning to the issue of mitigation, indeed the law under Section 216 and 329 of the Criminal Procedure Code provide for mitigation before sentence as an integral part of the criminal trial process. The record of proceedings before the trial court show that on 19 August 2024, the appellant duly mitigated. This was taken into account during sentencing and informed the award of the minimum sentence under the section. The court finds no merit in this ground.
Final Orders
52. In view of the above, the court finds that the appeal against conviction and sentence unmerited and is accordingly dismissed.
Delivered and signed at Nairobi on this 17 th day of September 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
1. The appellant herein Hamisi Ngalaa Chuphi, was convicted on 19 August 2024 and sentenced to 15 years imprisonment by the Principal Magistrate’s Court at Kaloleni for the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that on diverse dates between the month of April 2024 and 25 May 2024 at Miyani Village Kinangoni location in Kaloleni Sub-location within Kilifi County, intentionally and unlawfully caused his genital organ namely penis to penetrate the female genital organ namely vagina of F.K.G a child aged 17 years. Having been convicted on the principal charge, the court did not make any finding on the alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act.
2. A background of the case is that on 30 May 2022, the Appellant was arraigned and charged with the offence of defilement contrary to Section 8 (1) and (4) of the Sexual Offences Act . He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the said Act. He denied the charges prompting the trial in which the prosecution to called five (5) witnesses.
3. The case as presented by the prosecution was that on 7 May 2024 at about 11a.m, the appellant who was known to the complainant F.K.G (PW2), went to her home in a motorcycle, found her alone and seduced her. They both left and went to the appellant's house which she described as a single room with a veranda, where they engaged in sexual intercourse. Afterwards, he took her home. On 21 May 2024, the appellant went to the complainant’s, found her with her mother PW3, informed her that he needed the complainant to accompany him to the shops where he would buy some foodstuff and have the complainant return with them. PW3 agreed and the two left using the appellant's motorcycle.
4. The Appellant, however, took her to his sister’s house in Bamburi, introduced her to his brother as his wife, and they spent the night there. The next morning, she left with the appellant, went to Miyani where he rented a house, they stayed there for two days during which time they had sexual intercourse twice. All this while, he introduced her as his wife. On 25 May 2024, at around 9pm, police officers went to the house, found the two of them, arrested them and took them to Gotani police station. Her mother, PW3 Njina Chidulu Chitozi went and found her at the police station and escorted her to Mariakani hospital for medical examination.It was her testimony that she told the appellant she was 17 years old.
5. PW3, the complainant’s mother testified that she knew the appellant since 2024 since they lived in the same area. On 21 May 2024, the appellant went to their home, found her with the complainant, requested to go with the complainant so that he could buy her cooking oil and wheat flour. She agreed and the two left using the appellant's motorcycle. They did not return prompting her to search for them. On 23 May 2024, she reported the matter to the assistant chief. She was later called by the police who informed her that the complainant had been found and was in Gotani police station. She went there and found the appellant and complainant at the said station. They were later referred to the hospital where the complainant was examined.
6. PW4, Scolastica Zawadi Kazungu, the assistant chief of Miyani sub-location testified that on 25 May 2025, she received a report that there was a tenant who was living with a minor. She informed the OCS Gotani police station who together with other police officers, went to the house, found the appellant and complainant, arrested them and escorted to the said police station. PW1, Mwangolo Chigulu, a senior clinical officer at Mariakani hospital examined the complainant on 26 May 2024 and found that her hymen was missing and that her sphincter vaginal muscles were loose leading to the conclusion that there was vaginal penetration. He prepared a P3 form, treatment notes, Post Rape Care form, lab request and a copy of her birth certificate which he produced as exhibit 1 to 5 respectively.
7. PW5, PC Justus Kimanzi attached to Gotani police station investigated the case. He testified 25 May 2024 at 8pm, he was at the police station when the assistant chief of Miyani (PW4) reported that there was a man living with a minor. He accompanied by PW4 went to the scene where they found the appellant and the complainant. He arrested them and escorted them to the police station. He later on called the complainant’s mother, PW3, filled the P3 form and referred the complainant to Mariakani hospital where she was examined by PW1. He thereafter charged the appellant for defilement.
8. At the close of the prosecution’s case, the appellant was placed on his defence where he testified on oath. He denied committing the offence stating that he had approached the complainant’s mother, PW3 who was his aunt to allow the complainant take car of his daughter since his wife had left, which she, PW3 agreed. Later on he went with the complainant to Mombasa where he took her to his sister before they left and went to Miyani where he opened up a kiosk and they stayed for three (3) days. He was subsequently arrested at 8pm and taken to the police station where he was charged. He stated that he knew the complainant was 17 years old.
9. At the conclusion of the trial, judgment was rendered where the appellant was found guilty, convicted and sentenced to 15 years imprisonment. Aggrieved by the finding, conviction and sentence by the trial court, he filed the instant appeal where he raised the following grounds:
i. THAT the learned trial court erred in law and fact by placing reliance on the evidence of a single witness.
ii. THAT the learned trial court erred in law and fact by failing to find that the prosecution did not prove some essential ingredients that constitutes the offence.
iii. THAT the learned trial court erred in law and fact by failing to find that identification as an ingredient was not property proved.
iv. THAT the learned trial court erred in law and fact by failing to find that penetration was not proved.
v. THAT the learned trial court erred in law and fact by failing to find that the appellant was exonerated by Section 8 (5) of the Sexual Offences Act.
vi. THAT the learned trial court erred in law and fact by failing to find that age of the complainant as an ingredient of the offence was not proved and that she was an adult.
vii. THAT the learned trial court erred in law and fact by failing to consider the appellant’s defence which exonerated him.
viii. THAT the learned trial court misdirected itself by failing to find the minimum mandatory sentences are unconstitutional and thus failed to impose an appropriate sentence in view of the facts of the case.
10. The appeal was argued by way of written submissions which were duly filed and relied on by both parties as directed by court. The appellant appeared in person while the Respondent represented by M/s Ngina Mutua learned Counsel.
11. On the issue of penetration, the appellant submitted that there was no evidence to show that he had penetrated the complainant. He contended that whereas the medical officer, PW1, testified that there was evidence of penetration, he did not state who had penetrated the complainant. He argued that a broken hymen alone cannot be evidence of penetration since hymen can break in many other ways apart from through penile insertion. He further submitted that no evidence such as the alleged mat used during sex as stated by the complainant was produced as evidence and hence penetration was not proved.
12. On the issue of age of the complainant, the appellant challenged the production and authenticity of the birth certificate by PW1 stating that he did not state how he came into possession of the birth certificate. He submitted that under Section 77 (1) and (2) of the Evidence Act, its only a public officer working in government who could have produced the document. He further argued that no document was produced to show that the complainant was a school going child as she claimed in her evidence.
13. He further submitted that by dint of section 43 of the Sexual Offences Act, an act is intentional and unlawful if it is committed under coercive circumstances or under false pretence or through fraudulent means to persons who are incapable of understanding the nature of the act. He argued that none of these circumstances were proved but instead the complainant voluntarily agreed to accompany the appellant.
14. He also submitted that he believed that the complainant was above 18 years and hence was entitled to the defence under Section 8 (5) of the Sexual Offences Act. He denied that he had asked the complainant above her age or that she informed him that she was a school going child stating that no document was adduced in court to show that she was still in school as alleged.
15. He submitted that the court did not comply with sections 216 and 329 of the Criminal Procedure Code by failing to call for and consider mitigating circumstances before passing sentence. This according to him, violated his right to fair trial as guaranteed under Article 50 of the Constitution. He urged the court to allow the appeal and acquit him.
16. The Respondent opposed the appeal and relied on its written submissions. On the allegation that the trial court erred by placing reliance on the evidence of a single witnesses, the Respondent submitted that under Section 124 of the Evidence Act, in a sexual offence case, a conviction can be based on the evidence of a single witness. However, in this case, PW2’s evidence was duly corroborated by other witnesses and documentary evidence.
17. As regards proof of the offence, the Respondent submitted that all ingredients of the offence, being age of the complainant, penetration and positive identification of the perpetrator were duly proved.
18. On the allegation that the appellant’s defence was not considered, the Respondent submitted that the judgment clearly shows that the trial court duly considered the appellants defence but found it insufficient to dislodge the overwhelming evidence in support of the charge.
19. The Respondent further submitted that mandatory minimum sentences under the Sexual Offences Act are proper and constitutional as determined and affirmed by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR). I t urged the court to dismiss the appeal.
Analysis and determination
20. This being the first appeal, the duty of this court, as set out in Okeno Vs R [1972] EA 32 and affirmed in various decisions including the case of Mark Oiruri Mose vs Republic (2013) eKLR, is to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses.
21. The court of appeal, in Kiilu & Another V Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
22. Having considered the grounds of appeal, the evidence adduced in the lower court, the trial court’s judgement, the record of proceedings and the rival submissions of parties, I find the main issues for determination to be;
i. Whether the offence of defilement was proved beyond reasonable doubt.
ii. Whether the appellant established the defence under Section 8 (5) of the Sexual Offences Act.
iii. Whether the sentence imposed was proper, constitutional and valid.
i. Whether the offence of defilement was proved beyond reasonable doubt
23. 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 . Additionally, Section 8 (5) provides a defence to a person charged under that section. The said law provides;
“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 sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if -
(a) it is proved that such child, deceived the accused person into
believing that he or she was over the age of eighteen years at
the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the
age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”
24. The specific ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration; age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani vs Republic , Criminal Appeal No. 72 of 2013.
25. Age of the victim is a critical ingredient of the offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years.
26. The appellant submitted that age as an ingredient was not proved beyond reasonable doubt. He challenged the production and authenticity of the birth certificate by PW1 stating that he did not state how he came into possession of the birth certificate. He further submitted that under Section 77 (1) and (2) of the Evidence Act, its only a public officer working in government who could have produced the document. He further contended that no document was produced to show that the complainant was a school going child as she claimed in her evidence.
27. The Respondent submitted that age was proved by the complainant’s birth certificate which was produced as exhibit 5. That the birth certificate showed that she was 17 years old. Reliance was placed on the case of Francis Omuroni vs Uganda Court of Appeal Criminal Case No. 2 of 2000 where the court held that a birth certificate can be used as proof a victim’s age.
28. The High Court in Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) held;
“Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR ), the Court of Appeal stated that: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
29. As correctly stated by the court in Francis Omuroni vs Uganda (supra) age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See also Thomas Mwambu Wenyi vsRepublic Criminal Appeal No. 21 of 2015 [2017] .
30. In this case, the record shows that PW2 the complainant testified that she was 17 years old a position she restated during cross examination. She further stated that she told the appellant that she was 17 years old. PW3 the complainant’s mother, also testified that the complainant was 17 years old and her 7 th born. This was confirmed by her birth certificate produced as exhibit 5 by PW1 which shows that she was born on 7 September 2006 and hence 17 years when the offence occurred.
31. The appellant challenged the production of the birth certificate by PW1. However, the appellant did not object to its production during hearing. He was represented by Mr Kiseu learned counsel who was present in court on 10 June 2024 when PW1 testified and produced the exhibit. Having been properly produced, it is evidence. Article 159 (2) (d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities.
32. In my view, the production of the document is a procedural matter that was dealt with by the trial court. Besides, as laid out in Francis Omuroni vs Uganda, a ge can be proved in a number of other ways, including testimony by the complainant or parents. In this case, both the complainant and her mother gave the age of the complainant. I find this ingredient to have been proved beyond reasonable doubt.
33. On the issue of penetration, he appellant submitted that there was no evidence to show that he had penetrated the complainant. He contended that whereas the medical officer, PW1, testified that there was evidence of penetration, he did not state who had penetrated the complainant. He argued that a broken hymen alone cannot be evidence of penetration since hymen can break in many other ways apart from through penile insertion. He further submitted that no evidence such as the alleged mat used during sex as stated by the complainant was produced as evidence and hence penetration was not proved.
34. He further submitted that by dint of section 43 of the Sexual Offences Act, an act is intentional and unlawful if it is committed under coercive circumstances or under false pretence or through fraudulent means to persons who are incapable of understanding the nature of the act. He argued that none of these circumstances were proved but instead the complainant voluntarily agreed to accompany the appellant.
35. Before I delve into the evidence, I will first address the issue concerning Section 43 of the Sexual Offences Act . Section 43 of the said Act describes circumstances in which an act is deemed to be intentional and unlawful. These instances include use of coercion, fraud or where a person in incapable of appreciating the nature of the act constituting the offence. Under Section 43 (4) (f), a child, that is a person under the age of 18 years, in incapable of consenting. Thus in a case involving a minor, such as this one, it is immaterial that she may have willingly agreed to the sexual act since such a person is incapable of consent.
36. Having determined that, I will proceeded and consider whether penetration as an ingredient was proved. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person .
37. “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
38. To prove penetration, it must be established that the appellant inserted his penis into the vagina of the complainant either partially or completely.
39. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Cr iminal Appeal No. 35 of 1995 . Consequently, by dint of Section 124 of the Evidence Act, an accused can be convicted on the sole evidence of a victim provided that the trial court complies with the requirements under the section.
40. As regards the requirement of medical evidence, the court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
41. The complainant, PW2 testified that on 7 May 2024 at about 11a.m, the appellant who was known to the complainant F.K.G (PW2), went to her home in a motorcycle, found her alone and seduced her. They both left and went to the appellant's house which she described as a single room with a veranda, where they engaged in sexual intercourse. Afterwards, he took her home. On 21 May 2024, the appellant went to the complainant’s, found her with her mother PW3, informed her that he needed the complainant to accompany him to the shops where he would buy some foodstuff and have the complainant return with them. PW3 agreed and the two left using the appellant's motorcycle. The Appellant, however, took her to his sister’s house in Bamburi, introduced her to his brother as his wife, and they spent the night there. The next morning, she left with the appellant, went to Miyani where he rented a house, they stayed there for two days during which time they had sexual intercourse twice.
42. PW2 evidence was corroborated by PW3, her mother whose testimony confirmed the facts as stated by PW2. Additionally, PW4 and PW5’s evidence provided further corroboration on the account of events as described by PW2 which eventually led to the arrest of the appellant. Medical examination by PW1 and the evidence produced provides further proof that the was penetrative sexual intercourse as described by PW2. Whereas it is true that the absence of a hymen alone is not evidence of sexual penetration, the evidence and facts of the case prove that there was vaginal penetration through sex. The court has also considered the appellant’s defence and note that he largely corroborates the facts and account as stated by PW2 save for the denial that no sex took place. Having evaluated the evidence on record, the court finds that the element of penetration was proved beyond reasonable doubt.
43. On the issue of identification, Identification can be establish in various ways including through recognition. Recognition is generally stronger than identification of a stranger. In Anjononi & Others vs Republic [1980] KLR 59 , the Court of Appeal stated:
“Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger.”
44. PW2 testified that she identified the appellant the one she had sexual intercourse with. He was well known to her and the incident happened over a long stretch of time. They had lived together for more than three (3) days and hence there was no possibility of mistaken identity. PW3, PW4 and PW5 provided further corroboration. As stated in Anjononi & Others vs Republic (supra ), identification in this case was by recognition which is more reliable and assured that identification of a stranger. The court is satisfied that the appellant was properly identified as the assailant.
ii. Whether the appellant established the defence under Section 8 (5) of the Sexual Offences Act.
45. Turning to the second issue, the appellant submitted that he believed that the complainant was above 18 years and hence was entitled to the defence under Section 8 (5) of the Sexual Offences Act. He denied that he had asked the complainant about her age or that she informed him that she was a school going child stating that no document was adduced in court to show that she was still in school as alleged.
46. As stated herein before, Section 8 (5) of the Act provides a defence to the appellant if it is proved that the complainant, being a child, deceived him that she was over 18 years old and he reasonably believed so. Section 8 (6) requires a court to determine this having regard to all circumstances of the case, including any steps the accused took to ascertain the age of the complainant. If proved, an accused is entitled to an acquittal.
47. PW2 the complainant testified that the appellant asked her age and she told him she was 17 years old, a position she maintained during cross-examination. The appellant stated during cross examination that he knew the complainant was 17 years old. He stated as follows, “ the complainant is well known to me. She asked me to go with her. I know she is aged 17 years old….” . At no point did he state that she told him she was over 18 years old or he knew or believed that she was 18 years old. This ground fails.
iii. Whether the sentence imposed was proper, constitutional and valid
48. The appellant submitted that the court did not comply with sections 216 and 329 of the Criminal Procedure Code by failing to call for and consider mitigating circumstances before passing sentence. This according to him, violated his right to fair trial as guaranteed under Article 50 of the Constitution. In his grounds of appeal, he contended that the minimum mandatory sentences under the Sexual Offences Act are unconstitutional. However, no submissions were made on this point during hearing.
49. Respondent argued that mandatory minimum sentences under the Sexual Offences Act are proper and constitutional as determined and affirmed by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR).
50. Indeed the issue of mandatory minimum sentences has been determined by the Supreme Court. The Supreme Court in Republic vs Joshua Gichuki Mwangi (2024) JELR112261 (SC) held that the Minimum Sentences set out in Section 8 of the Sexual Offences Act are lawful. This followed the clarification in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (supra) where the court restricted its decision to murder cases under Section 203 and 204 of the Penal Code. Despite this and for good reasons, this matter continues to attract divergent opinions. However, the law as it is, is that mandatory minimum sentences under the Sexual Offences Act are valid and continue to apply.
51. Turning to the issue of mitigation, indeed the law under Section 216 and 329 of the Criminal Procedure Code provide for mitigation before sentence as an integral part of the criminal trial process. The record of proceedings before the trial court show that on 19 August 2024, the appellant duly mitigated. This was taken into account during sentencing and informed the award of the minimum sentence under the section. The court finds no merit in this ground.
Final Orders
52. In view of the above, the court finds that the appeal against conviction and sentence unmerited and is accordingly dismissed.
Delivered and signed at Nairobi on this 17 th day of September 2026
JOSEPH KIPKOECH BIOMDO
JUDGE