(Being an Appeal from the judgment of Hon. D Wasike Principal Magistrate at Kilifi Chief Magistrate’s Court in S.O E001 of 2021 dated 20 th August, 2023)
Introduction.
1. The appellant was charged and convicted for the offence of defilement contrary To Section 8(1) as read with Section 8(3) of the Sexual Offeences Act, No. 3 of 2006. He was subsequently sentenced to serve 30 years imprisonment.
2. The particulars of the main charge in which the appellant was convicted are that on diverse dates between the month of December, 2019 and 1 st January, 2021 at (particulars withheld) within Kilifi County intentionally and unlawfully caused his penis to penetrate into the vagina of P.D.M a child aged 15 years.
3. The appellant aggrieved by the conviction and sentence preferred this appeal to the High Court. The appellant raised several grounds which can be compressed into three grounds as can be discerned in his submissions. These grounds are:
1. The trial court erred in law and fact in failing to consider the defence under Section 8(5) of the Sexual Offences Act.
2. The trial court erred in law and fact in failing to consider that the medical evidence was insufficient to sustain a conviction.
3. That the sentence was unlawful, harsh and excessive.
Prosecution Case.
4. The prosecution case was fairly straight forward. It was that on the 1 st January, 2021 the complainant went missing. Her mother PW3 looked for her in vain prompting her to report to the police station.
5. Later the complainant resurfaced and upon her mother inquiring where she was she stated that she was with the appellant. Her mother informed the police that the complainant had resurfaced.
6. The complainant led the police to the house of the appellant where the appellant was arrested.
7. PW2 the police officer who investigated the case stated that on interrogating the complainant she told him that she had a relationship with the appellant dating back to 2019 and in the course of the relationship they have had sexual intercourse.
8. In the course of investigations, it was established that the complainant was aged 16 years as per the birth certificate produced in court as exhibit. It was also established that the complainant’s hymen was broken signifying penetration as per the medical evidence adduced by PW1.
9. The complainant herself in her evidence confirmed that she had met the appellant who seduced her and she agreed to meet with him. She indeed went to stay with the appellant. She further confirmed that the relationship started in 2020 and in the course they had sex resulting to pregnancy.
Defence Case.
10. The appellant when put on his defence, he opted to give a sworn statement and did not call any witness. His defence was that the charges were framed against him so as to disinherit him. He basically denied committing the offence.
Appellant’s Submissions.
11. The appellant in his submissions argued that the trial court failed to consider the defence under Section 8(5) of the Sexual Offences Act. His argument is that the complainant presented herself to him as a person who could safely consent to sexual intercourse notwithstanding her age.
12. The appellant submitted on the circumstances under which the relationship between him and the complainant started leading to pregnancy and argued that from the manner in which the offence was committed, the defence under Section 8(5) of the Sexual Offences Act was available to him. He relied on the case of J.N.N vs Republic Criminal Appeal No. 71 of 2013.
13. The appellant further faulted the trial court in relying on insufficient medical evidence. The argument is that PW1 who produced the P3 Form and other medical evidence is not the one who examined the complainant and there was no basis laid why the maker of the medical documents was not availed to produce the same.
14. Finally, the appellant submitted that the sentence imposed by the trial court of 30 years imprisonment was unlawful as it was beyond the sentence provide for under the penal section of the Sexual Offences Act..
Respondent’s Submissions.
15. The respondent contested the appeal. It was submitted that the prosecution proved the charges beyond reasonable doubt as all the necessary ingredients of the offence of defilement were proved to the required standard.
16. The respondent submitted that age of the complainant was proved by the evidence of the complainant, her mother and the birth certificate produced in court as exhibit.
17. Regarding penetration, it was submitted that the evidence of the victim that she had sexual intercourse with the appellant was corroborated by the medical evidence.
18. Regarding identification of the appellant as the perpetrator, it is submitted that the same was based on recognition as the appellant was well known to the complainant.
19. Regarding the defence under Section 8(5) of the Sexual Offences Act, it is submitted that the appellant never raised the same before the trial court neither did he indicate any steps he took to ascertain the age of the complainant in such manner that the complainant lied to him about her age.
Analysis and Determination.
20. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Okeno vs Republic (1972) E.A 32 and draw its own conclusions without overlooking the fact that it did not have the advantage of seeing and hearing the witnesses testify.
21. Again, it must be remembered that the burden of proof lies on the prosecution to the guilt of an accused and the standard of proof is that of beyond reasonable doubt.
22. Bearing the foregoing in mind, the ingredients of the offence of defilement are proof of age of the victim, proof of penetration and proper identification of the perpetrator. (See Opondo Olunga vs Republic (2016) e KLR)
23. Having re-evaluated the evidence adduced before the trial court, it is not in dispute that the complainant told the court that at the time of the alleged offence she was a class 8 pupil. PW1 produced age assessment report indicating that at the time of examination she was aged 15 years old. This was corroborated by the birth certificate produced in court as exhibit showing that the complainant was born on 19 th February, 2005. Clearly, the complainant was aged 15 years approaching the age of 16 years as at the time the offence was committed.
24. Regarding penetration, the complainant was categorical that the appellant seduced her leading to a relationship and in the course they engaged in sexual intercourse. This was corroborated by the medical evidence and circumstantial evidence that the complainant after going missing she was traced at the appellant’s house.
25. The appellant challenged the medical evidence terming it insufficient because the witness who produced the medical reports is not the one who had examined the complainant. It is true that PW1 admitted that he is not the one who examined the complainant. It is also correct that PW1 did not lay the basis why the doctor who filled the medical forms was never available. However, the appellant did not object to the production of the said medical evidence by PW1 and the presumption is that the appellant waived the requirement of calling the maker of the said medical documents.
26. In the premises I find that the medical evidence was properly produced in court and the same corroborated the evidence of the complainant that she had been defiled.
27. On identification of the appellant as the perpetrator, it is not in dispute from the evidence adduced that the appellant was well known to the complainant. In fact, the complainant is the one who led the police to the appellant’s house. There can be no possibility of mistaken identity as this was identification by recognition.
28. From the foregoing it is clear that this was an open and shut case as all the ingredients of the offence of defilement were proved as required.
29. What stands out for determination in this case is whether the defence under Section 8(5) of the Sexual Offences Act was available to the appellant. In determining this issue let me point out that the appellant never raised the same before the trial court. It was not therefore one of the issue the trial court was called to consider.
30. Nevertheless, as the first appellate court, I have a duty to examine the evidence adduced and determine whether such defence is available to the appellant. Section 8(5) of the Sexual Offences Act provides:
8(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 eighteen years.
8(6) The belief referred to in subsection 5(b) is to be determined having regard to all circumstances, including any steps the accused person took to ascertain the age of the complainant.
31. From the foregoing, for the accused to benefit from the defence contemplated under Section 8(5) of the Sexual Offences Act, the accused must prove that the complainant deceived him into believing that he or she was above eighteen years and that the accused reasonably believed that the victim was above the age of eighteen years. Such believe must be considered having regard to all the circumstances of the case as to the steps the accused took to ascertain the age of the victim. In other words, the law places the burden of proof on the accused person to prove the defence.
32. Unfortunately, in this case the defence is being raised in this appeal. It was never raised before the trial court. The appellant apart from submitting on the circumstances under which the offence was committed, he never cross-examined the complainant on the aspect of whether she deceived him or not, neither has the appellant alluded to having taken any steps to ascertain the age of the complainant. I can rightly state that the defence under Section 8(5) of the Act is an afterthought.
33. Finally, the appellant argued that the sentence was unlawful. The appellant was sentenced to 30 years imprisonment. He was charged with defiling a child aged 15 years. The minimum sentence under Section 8(3) of the Sexual Offences Act is 20 years.
34. I agree with the appellant the sentence of 30 years was not only excessive but unlawful. I do hereby interfere with the said sentence and reduce the same to the minimum sentence of 20 years imprisonment.
35. The upshot is that the appeal partially succeeds. The conviction is upheld. The sentence is reduced to 20 years. The same shall be computed from the date when the appellant was sentenced taking into account the period he was in the pretrial custody.
Dated, signed and delivered virtually this 14 th day of September, 2026.
Francis Kyambia
Judge
2
Introduction.
1. The appellant was charged and convicted for the offence of defilement contrary To Section 8(1) as read with Section 8(3) of the Sexual Offeences Act, No. 3 of 2006. He was subsequently sentenced to serve 30 years imprisonment.
2. The particulars of the main charge in which the appellant was convicted are that on diverse dates between the month of December, 2019 and 1 st January, 2021 at (particulars withheld) within Kilifi County intentionally and unlawfully caused his penis to penetrate into the vagina of P.D.M a child aged 15 years.
3. The appellant aggrieved by the conviction and sentence preferred this appeal to the High Court. The appellant raised several grounds which can be compressed into three grounds as can be discerned in his submissions. These grounds are:
1. The trial court erred in law and fact in failing to consider the defence under Section 8(5) of the Sexual Offences Act.
2. The trial court erred in law and fact in failing to consider that the medical evidence was insufficient to sustain a conviction.
3. That the sentence was unlawful, harsh and excessive.
Prosecution Case.
4. The prosecution case was fairly straight forward. It was that on the 1 st January, 2021 the complainant went missing. Her mother PW3 looked for her in vain prompting her to report to the police station.
5. Later the complainant resurfaced and upon her mother inquiring where she was she stated that she was with the appellant. Her mother informed the police that the complainant had resurfaced.
6. The complainant led the police to the house of the appellant where the appellant was arrested.
7. PW2 the police officer who investigated the case stated that on interrogating the complainant she told him that she had a relationship with the appellant dating back to 2019 and in the course of the relationship they have had sexual intercourse.
8. In the course of investigations, it was established that the complainant was aged 16 years as per the birth certificate produced in court as exhibit. It was also established that the complainant’s hymen was broken signifying penetration as per the medical evidence adduced by PW1.
9. The complainant herself in her evidence confirmed that she had met the appellant who seduced her and she agreed to meet with him. She indeed went to stay with the appellant. She further confirmed that the relationship started in 2020 and in the course they had sex resulting to pregnancy.
Defence Case.
10. The appellant when put on his defence, he opted to give a sworn statement and did not call any witness. His defence was that the charges were framed against him so as to disinherit him. He basically denied committing the offence.
Appellant’s Submissions.
11. The appellant in his submissions argued that the trial court failed to consider the defence under Section 8(5) of the Sexual Offences Act. His argument is that the complainant presented herself to him as a person who could safely consent to sexual intercourse notwithstanding her age.
12. The appellant submitted on the circumstances under which the relationship between him and the complainant started leading to pregnancy and argued that from the manner in which the offence was committed, the defence under Section 8(5) of the Sexual Offences Act was available to him. He relied on the case of J.N.N vs Republic Criminal Appeal No. 71 of 2013.
13. The appellant further faulted the trial court in relying on insufficient medical evidence. The argument is that PW1 who produced the P3 Form and other medical evidence is not the one who examined the complainant and there was no basis laid why the maker of the medical documents was not availed to produce the same.
14. Finally, the appellant submitted that the sentence imposed by the trial court of 30 years imprisonment was unlawful as it was beyond the sentence provide for under the penal section of the Sexual Offences Act..
Respondent’s Submissions.
15. The respondent contested the appeal. It was submitted that the prosecution proved the charges beyond reasonable doubt as all the necessary ingredients of the offence of defilement were proved to the required standard.
16. The respondent submitted that age of the complainant was proved by the evidence of the complainant, her mother and the birth certificate produced in court as exhibit.
17. Regarding penetration, it was submitted that the evidence of the victim that she had sexual intercourse with the appellant was corroborated by the medical evidence.
18. Regarding identification of the appellant as the perpetrator, it is submitted that the same was based on recognition as the appellant was well known to the complainant.
19. Regarding the defence under Section 8(5) of the Sexual Offences Act, it is submitted that the appellant never raised the same before the trial court neither did he indicate any steps he took to ascertain the age of the complainant in such manner that the complainant lied to him about her age.
Analysis and Determination.
20. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Okeno vs Republic (1972) E.A 32 and draw its own conclusions without overlooking the fact that it did not have the advantage of seeing and hearing the witnesses testify.
21. Again, it must be remembered that the burden of proof lies on the prosecution to the guilt of an accused and the standard of proof is that of beyond reasonable doubt.
22. Bearing the foregoing in mind, the ingredients of the offence of defilement are proof of age of the victim, proof of penetration and proper identification of the perpetrator. (See Opondo Olunga vs Republic (2016) e KLR)
23. Having re-evaluated the evidence adduced before the trial court, it is not in dispute that the complainant told the court that at the time of the alleged offence she was a class 8 pupil. PW1 produced age assessment report indicating that at the time of examination she was aged 15 years old. This was corroborated by the birth certificate produced in court as exhibit showing that the complainant was born on 19 th February, 2005. Clearly, the complainant was aged 15 years approaching the age of 16 years as at the time the offence was committed.
24. Regarding penetration, the complainant was categorical that the appellant seduced her leading to a relationship and in the course they engaged in sexual intercourse. This was corroborated by the medical evidence and circumstantial evidence that the complainant after going missing she was traced at the appellant’s house.
25. The appellant challenged the medical evidence terming it insufficient because the witness who produced the medical reports is not the one who had examined the complainant. It is true that PW1 admitted that he is not the one who examined the complainant. It is also correct that PW1 did not lay the basis why the doctor who filled the medical forms was never available. However, the appellant did not object to the production of the said medical evidence by PW1 and the presumption is that the appellant waived the requirement of calling the maker of the said medical documents.
26. In the premises I find that the medical evidence was properly produced in court and the same corroborated the evidence of the complainant that she had been defiled.
27. On identification of the appellant as the perpetrator, it is not in dispute from the evidence adduced that the appellant was well known to the complainant. In fact, the complainant is the one who led the police to the appellant’s house. There can be no possibility of mistaken identity as this was identification by recognition.
28. From the foregoing it is clear that this was an open and shut case as all the ingredients of the offence of defilement were proved as required.
29. What stands out for determination in this case is whether the defence under Section 8(5) of the Sexual Offences Act was available to the appellant. In determining this issue let me point out that the appellant never raised the same before the trial court. It was not therefore one of the issue the trial court was called to consider.
30. Nevertheless, as the first appellate court, I have a duty to examine the evidence adduced and determine whether such defence is available to the appellant. Section 8(5) of the Sexual Offences Act provides:
8(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 eighteen years.
8(6) The belief referred to in subsection 5(b) is to be determined having regard to all circumstances, including any steps the accused person took to ascertain the age of the complainant.
31. From the foregoing, for the accused to benefit from the defence contemplated under Section 8(5) of the Sexual Offences Act, the accused must prove that the complainant deceived him into believing that he or she was above eighteen years and that the accused reasonably believed that the victim was above the age of eighteen years. Such believe must be considered having regard to all the circumstances of the case as to the steps the accused took to ascertain the age of the victim. In other words, the law places the burden of proof on the accused person to prove the defence.
32. Unfortunately, in this case the defence is being raised in this appeal. It was never raised before the trial court. The appellant apart from submitting on the circumstances under which the offence was committed, he never cross-examined the complainant on the aspect of whether she deceived him or not, neither has the appellant alluded to having taken any steps to ascertain the age of the complainant. I can rightly state that the defence under Section 8(5) of the Act is an afterthought.
33. Finally, the appellant argued that the sentence was unlawful. The appellant was sentenced to 30 years imprisonment. He was charged with defiling a child aged 15 years. The minimum sentence under Section 8(3) of the Sexual Offences Act is 20 years.
34. I agree with the appellant the sentence of 30 years was not only excessive but unlawful. I do hereby interfere with the said sentence and reduce the same to the minimum sentence of 20 years imprisonment.
35. The upshot is that the appeal partially succeeds. The conviction is upheld. The sentence is reduced to 20 years. The same shall be computed from the date when the appellant was sentenced taking into account the period he was in the pretrial custody.
Dated, signed and delivered virtually this 14 th day of September, 2026.
Francis Kyambia
Judge
2