The Appellant was convicted and sentenced to serve 10 years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act.
The particulars of the offence were that the Appellant on diverse dates of November 2021 to 22nd December 2021 at Bogetenga Sub-Location in Gucha South Sub-County within Kisii County, intentionally caused his penis to penetrate the vagina of E. M. P a child aged 15 years.
The Appellant was aggrieved by the conviction and sentence and he filed the appeal herein vide Petition of Appeal filed on 25th January 2024 on the following grounds:
(a) That the trial court erred in both law and facts by convicting the Appellant to serve 10 years imprisonment without observing that the offence of defilement was not proved beyond reasonable doubt as required by law.
(b) That the Trial Magistrate erred in both law and fact by convicting the Appellant thirty years imprisonment without considering that the investigations conducted was scanty and shady which could not be used to secure conviction.
(c) That the medical report tendered was malice which was only generated in order to fix the Appellant who is a young peasant boy into this heinous act.
(d) That the trial magistrate erred in law and facts by convicting the Appellant to serve a huge and punitive sentence of 15 years without considering the general circumstances of the offence thus the court should review the findings of the lower court for the interest of justice.
(e) That the Learned Trial Magistrate further erred in both law and in facts by convicting the Appellant to 10 years imprisonment despite the glaring contradictions.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Complainant PW1 testified that she was 16 years and that she had dropped out of school in form 2 the previous year. She said the Appellant was her husband and that while going back to school after half term she visited him at Nyamarambe. She said she went to the Appellant’s house on a boda boda while wearing civilian clothes. PW1 said her parent were not aware she was going to visit the Appellant. She testified that she stayed at the Appellant’s house for one week and shared the one bed that was in the Appellant’s house and had sexual intercourse. She testified that on 22.12.2021 her parents went and had them arrested by the Chief who took them to Nyamarambe Police Station and her statement was recorded.
PW2 the father of the Complainant testified that on 22.12.2021 the Chief called him and when he went to see him Mary led him to where the Appellant lived with his daughter and the Chief arrested them and they were referred to the Police Station.
PW3 Isaac Omwega the Clinical Officer at Nduru Hospital testified that on 23.12.2021 he received the Complainant aged 15 years old who told him she was cohabiting with the Appellant who was known to her and she said she was pregnant. That she was booked for clinic. PW3 said that on examination of her genitalia it was normal with torn hymen but which was not freshly torn. He confirmed the Complainant had been defiled.
In cross examination PW3 said the patient knew who had impregnated her and that by the time he was testifying it was over one year after examination and that the complainant was likely to have delivered.
After the Clinical Officer testified on 29th November 2022 the Prosecuting Counsel sought adjournment to call the investigating Officer who was said to have gone to guard examinations. On 17.1.23 when matter came up for hearing the prosecution said all witnesses had testified and closed their case when in
the I/O had not testified.
The Appellant was placed on defense on account of the testimony of 3 prosecution witnesses and he gave sworn evidence and said that the charge against him was not true. He said he came to know the Complainant between November and 22.12.2021 when he was playing football in Etago and the Complainant was working in a food kiosk as a waiter. He said that they talked severally and became friends for a span of 5-6 months before he took her to live at his place. That on 20.12.2021 he went to play football in Homa-Bay and on return on 21.12.2021 he did not find her and he learnt villagers told her about him and she deserted. That on 23.12.2021 at 6.00am elders went to him, beat him and took him to area Chief’s office where he met a crowd and he was interrogated and tied up. He was then taken to Nyamarambe Hospital and later put in cells and arraigned in court on 24.12.2021 where he was charged. The Appellant denied defiling the Complainant.
In cross examination the Appellant said he knew the Complainant as from July 2021 while she was working in a food kiosk and she told him she was 19 years old and she looked like an adult.
This Appeal was canvassed by way of written submissions.
In the Appellant’s written submissions dated 11th December 2024 he gave supplementary amended ground of appeal in which he pleaded with the court to reduce his sentence of 10 years as being excessive; he said the Complainant was forced to testify against him and she was staying at his home. He said the Complainant made him believe she was above 18 years. He said he was remorseful for the commission of the offence.
The Appellant submitted that his right to legal representation was violated as he was not informed that he had the right to hire an advocate. He cited the holding in Joseph Kiema Philip Vs Republic 92019) Eklr where Nyakundi J held:
“Having said so, it is paramount that the record of the trial court should demonstrate that the rights enshrined under Article 50 of the constitution were accorded to the accused person where they are applicable. For instance, the record of the trial court must demonstrate that the accused was informed of his right to legal representation and whether or not in the case that he cannot afford an advocate, one may be appointed at the expense of the state. It must show that the court did take the profile of the accused person before the trial commenced and in doing that the trial court may look into, inter alia, the education level of the accused, it must inquire whether or not he understands or he is knowledgeable in legal matters as well as the trial process. Whether or not he understands the languages of the Court, that is English and Kiswahili and if not, the court must ensure that an interpreter has been appointed to aid the accused person in all matters of such kind. Where the a person does not afford an advocate or qualify to having one appointed at state expense, and the court is of the opinion that substantial injustice is likely to be occasioned considering the circumstances of each case, it may allow the accused person to have an intermediary of his choice who may be knowledgeable enough to speak on his behalf.”
The Appellant said he was not disputing what was on record but if he was informed of his right to legal representation he may not have ended in prison. He however pleaded for leniency of the court.
On whether the sentence imposed met the tenets of the Constitution, the Appellant relied on Petition No. E017 of 2021 where Odunga J (as he then was) held that mandatory sentences in SOA deprived the courts power to exercise discretion in sentences thus falling foul under Article 28 of the Constitution and directed that those who were convicted with the mandatory sentences should petition the High Court for resentencing. The Appellant argued that 10 years is the minimum mandatory sentence under Section 8(3) of the Sexual Offences Act.
He also cited S Vs Malgsa[2001] and Fredrick Otieno Odero Vs Republic[2021] where it was held that excessive punishment does not serve the interest of justice nor society.
On the conduct of the Complainant the Appellant said that she referred to him as her husband and they stayed in same house for one week. He said the Complainant carried herself as an adult and went to the Appellant’s house and became a wife. The Appellant cited the English decision in Gillick Vs West Norfolkand Wisbech Area Health Authority (1985) where the House of Lords held that it is unrealistic to assume that teenagers do not and often seek sexual activity with their eyes open. They may not have attained of maturity but they may well have reached the ae of discretion and ae able to make intelligent and informed decisions about their lives.
The Appellant also submitted the Complainant made him believe she was 19 years and he urged the court to invoke the provisions of Section 8(5) of the Sexual Offences Act in his favour.
The Appellant also said the Trial Court did not award him with the remand period under Section 333(2) of the CPC. He urged the court to allow his appeal.
The Respondent Counsel filed submissions dated 19th November 2024 and opposed the appeal and said the ingredients of the offence of defilement had been proved to the required standards.
On sentence being huge and punitive the Respondent Counsel submitted that the sentence was illegal and in contravention of the provisions of Section 8(3) of the Sexual Offences Act which provides for a minimum sentence of 20 years imprisonment. The court was urged to enhance the sentence.
The Respondent urged the court to find that the conviction was safe, and uphold the decision of the Trial Magistrate on conviction and sentence.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issue for determination is whether the element of the Complainant’s age was proved beyond reasonable doubt and whether the Appellant’s defense under Section 8(5) of the Sexual Offences Act was considered by the Trial Magistrate.
On whether the element of the Complainant’s age was proved beyond reasonable doubt and whether the Appellant’s defense under Section 8(5) of the Sexual Offences Act was considered by the Trial Magistrate,
Section 8 (1) as read with 8(3) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (3) A person who commits an offence of defilement with a child between the age of twelve to fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant. From the evidence on record in the trial court and from the grounds of appeal and submissions, the elements of penetration and identification of the assailant are not in dispute. The Appellant and the Complainant were found co-habiting and as a result of their sexual interactions the Complainant became pregnant. It is the Appellant’s case that the Complainant is in-fact residing in his home with the child born out of that relationship. What is in contention is whether the age of the Complainant was proved to the required standards.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
From the evidence of PW1 she said she was 16 years and she alleged she was a form 2 drop out at an unknown school. PW1 said her Certificate of Birth showed she was born in 2006 and PW3 the Clinical Officer who examined PW1 also said the Complainant was 15 years old at the time he was examining her and she told him that she was cohabiting with a person known to her. By the time the Complainant was being examined she was pregnant following the sexual relationship she had with the Appellant.
PW2 the father of the Complainant said that he found the Appellant with a school girl. Although the Investigating Officer did not testify and produce the Certificate of Birth to confirm the exact age of the Complainant, it was the evidence of PW1,2 & 3 that the Complainant was a school girl and that she was 15 years at the time she was allegedly defiled. Going by the evidence of PW1,2 & 3 the complainant was therefore a child under Section 2 of the Children’s Act which defines a child to mean an individual who has not attained the age of eighteen years.
The Appellant raised the defense under Section 8(5) of the Sexual Offences Act that he was not aware the Complainant was a child and a school girl as she told him that she was 19 years old and she was working in a food kiosk as a waiter at Nyamarambe where he lived and that is why he took her as a wife and they cohabited as such.
The Trial Magistrate while dismissing the Appellant’s defense noted that the Complainant had visited the Appellant during the half-term break and was therefore not employed in any hotel. He also said that the Appellant’s defense was an afterthought as he never cross-examined the Complainant on age or about working in a hotel.
Section 8(5) and 8(6) of the Sexual Offence Act, No 3 of 2006 avails a defense to a person who is charged with the offence of defilement. The said provisions provide that;
Section 8(5) - “It is a defense 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 18 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.
Section 8(6) –
“The belief referred to in subsection 8(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.”
The Court of Appeal in the case of Eliud Waweru Wambui Vrs Republic (2019) eklr the issue of the Defense provided under Section 8(5) and (6) Of the Sexual Offences Act was discussed and it was stated thus;
“Subsection (5) states that it is a defense to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. We think it is rather curious provision in so far as it sets in conjunctive as opposed to disjunctive terms which seem to be more logical as opposed to the current rendition. We would think that once a person has actually been deceived into believing a certain state of things, it adds little to the require that his such belief be reasonably held. Indeed, a reading of subsection (6) seems to add a qualification to subsection 5(b) that separates it from the belief proceedings from deception in subsection (5)(a). we would therefor opine that the elements constituting a defence should be read disjunctively if the two sub sections are to make sense.………… we would find merit in the Applicants contention that in all circumstances of the case he reasonably believed that the complainant was over the age of 18 years. The burden of proving that deception or belief fell upon the Appellant, but the burden is on a balance of probabilities as is to be assessed on the basis of the appellants subjective view of the facts. Thus whereas indeed the complainant was still in school in form 4, that alone would not rule out a reasonable belief that she would be over 18 years old. It is germane to point out that a child need not deceive by way of actively telling a lie that she is over 18 years. We would give the term deceive the ordinary dictionary meaning which is to;“Deliberately cause (someone) to believe something that is not true or (of a thing) given a mistaken impression to” (As per the concise oxford English Dictionary, 12th Edition).So understood, we would think that had the two courts below properly directed their minds to the Appellants defence and the totality of the circumstances of this case, they would have in all likelihood have arrived at a different conclusion on it. It was a non-direction that they did not do so, rendering the conviction unsafe.We need to add as we dispose off this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a age younger than 16 years old. We think it is rather unrealistic to assume that teenagers and maturing adults in the since employed by the English house of lords in Gillick Vrs West Norefolk & Wisbech Area Health Authority (1985) 3 ALL ER 402, do not engage in, and often seek sexual activities with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process and not a series of disjointed leaps. As lord scarman put it in that case ( at page 421);“if the law should impose on the process of, “growing up” fixed limits where nature knows only a continuous process, the price would be artificially and lack of realism in an area where the law must be sensitive to human development and society change.” At page 422The law also referred to the judgment of chief justice Lord Parker in R vrs Howard (1965) 3 ALL ER 684“…. Where he ruled that in the case of prosecution charging rape of a girl under the age of 16 the crown must prove either lack of her consent or that she was not in a position to decide whether to consent or resist and added the comment that, “there are many girls who know full well what it is all about and can properly consent”.
In consideration that the Complainant said that she went to the Appellant’s house on her own volition using a boda boda instead of going back to school after half-term, and in consideration that she was even referring to the Appellant as her husband while giving her testimony in court and further considering that there was no evidence to prove where she was studying and also there was no evidence of her exact age this court finds that the Trial Magistrate ought to have found merit in the Appellant’s contention that in all circumstances of the case he reasonably believed that the Complainant was above the age of majority as the burden of proving that deception is on a balance of probabilities as it was to be assessed on the basis of the Appellants subjective view of the facts.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal has merit and the same is allowed.
The conviction is quashed and sentence set aside. The Appellant to be set at liberty forthwith unless lawfully detained.
Right of Appeal 14 days.
Dated, Signed and Delivered at Kisii this 24th day of June, 2025
The particulars of the offence were that the Appellant on diverse dates of November 2021 to 22nd December 2021 at Bogetenga Sub-Location in Gucha South Sub-County within Kisii County, intentionally caused his penis to penetrate the vagina of E. M. P a child aged 15 years.
The Appellant was aggrieved by the conviction and sentence and he filed the appeal herein vide Petition of Appeal filed on 25th January 2024 on the following grounds:
(a) That the trial court erred in both law and facts by convicting the Appellant to serve 10 years imprisonment without observing that the offence of defilement was not proved beyond reasonable doubt as required by law.
(b) That the Trial Magistrate erred in both law and fact by convicting the Appellant thirty years imprisonment without considering that the investigations conducted was scanty and shady which could not be used to secure conviction.
(c) That the medical report tendered was malice which was only generated in order to fix the Appellant who is a young peasant boy into this heinous act.
(d) That the trial magistrate erred in law and facts by convicting the Appellant to serve a huge and punitive sentence of 15 years without considering the general circumstances of the offence thus the court should review the findings of the lower court for the interest of justice.
(e) That the Learned Trial Magistrate further erred in both law and in facts by convicting the Appellant to 10 years imprisonment despite the glaring contradictions.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Complainant PW1 testified that she was 16 years and that she had dropped out of school in form 2 the previous year. She said the Appellant was her husband and that while going back to school after half term she visited him at Nyamarambe. She said she went to the Appellant’s house on a boda boda while wearing civilian clothes. PW1 said her parent were not aware she was going to visit the Appellant. She testified that she stayed at the Appellant’s house for one week and shared the one bed that was in the Appellant’s house and had sexual intercourse. She testified that on 22.12.2021 her parents went and had them arrested by the Chief who took them to Nyamarambe Police Station and her statement was recorded.
PW2 the father of the Complainant testified that on 22.12.2021 the Chief called him and when he went to see him Mary led him to where the Appellant lived with his daughter and the Chief arrested them and they were referred to the Police Station.
PW3 Isaac Omwega the Clinical Officer at Nduru Hospital testified that on 23.12.2021 he received the Complainant aged 15 years old who told him she was cohabiting with the Appellant who was known to her and she said she was pregnant. That she was booked for clinic. PW3 said that on examination of her genitalia it was normal with torn hymen but which was not freshly torn. He confirmed the Complainant had been defiled.
In cross examination PW3 said the patient knew who had impregnated her and that by the time he was testifying it was over one year after examination and that the complainant was likely to have delivered.
After the Clinical Officer testified on 29th November 2022 the Prosecuting Counsel sought adjournment to call the investigating Officer who was said to have gone to guard examinations. On 17.1.23 when matter came up for hearing the prosecution said all witnesses had testified and closed their case when in
the I/O had not testified.
The Appellant was placed on defense on account of the testimony of 3 prosecution witnesses and he gave sworn evidence and said that the charge against him was not true. He said he came to know the Complainant between November and 22.12.2021 when he was playing football in Etago and the Complainant was working in a food kiosk as a waiter. He said that they talked severally and became friends for a span of 5-6 months before he took her to live at his place. That on 20.12.2021 he went to play football in Homa-Bay and on return on 21.12.2021 he did not find her and he learnt villagers told her about him and she deserted. That on 23.12.2021 at 6.00am elders went to him, beat him and took him to area Chief’s office where he met a crowd and he was interrogated and tied up. He was then taken to Nyamarambe Hospital and later put in cells and arraigned in court on 24.12.2021 where he was charged. The Appellant denied defiling the Complainant.
In cross examination the Appellant said he knew the Complainant as from July 2021 while she was working in a food kiosk and she told him she was 19 years old and she looked like an adult.
This Appeal was canvassed by way of written submissions.
In the Appellant’s written submissions dated 11th December 2024 he gave supplementary amended ground of appeal in which he pleaded with the court to reduce his sentence of 10 years as being excessive; he said the Complainant was forced to testify against him and she was staying at his home. He said the Complainant made him believe she was above 18 years. He said he was remorseful for the commission of the offence.
The Appellant submitted that his right to legal representation was violated as he was not informed that he had the right to hire an advocate. He cited the holding in Joseph Kiema Philip Vs Republic 92019) Eklr where Nyakundi J held:
“Having said so, it is paramount that the record of the trial court should demonstrate that the rights enshrined under Article 50 of the constitution were accorded to the accused person where they are applicable. For instance, the record of the trial court must demonstrate that the accused was informed of his right to legal representation and whether or not in the case that he cannot afford an advocate, one may be appointed at the expense of the state. It must show that the court did take the profile of the accused person before the trial commenced and in doing that the trial court may look into, inter alia, the education level of the accused, it must inquire whether or not he understands or he is knowledgeable in legal matters as well as the trial process. Whether or not he understands the languages of the Court, that is English and Kiswahili and if not, the court must ensure that an interpreter has been appointed to aid the accused person in all matters of such kind. Where the a person does not afford an advocate or qualify to having one appointed at state expense, and the court is of the opinion that substantial injustice is likely to be occasioned considering the circumstances of each case, it may allow the accused person to have an intermediary of his choice who may be knowledgeable enough to speak on his behalf.”
The Appellant said he was not disputing what was on record but if he was informed of his right to legal representation he may not have ended in prison. He however pleaded for leniency of the court.
On whether the sentence imposed met the tenets of the Constitution, the Appellant relied on Petition No. E017 of 2021 where Odunga J (as he then was) held that mandatory sentences in SOA deprived the courts power to exercise discretion in sentences thus falling foul under Article 28 of the Constitution and directed that those who were convicted with the mandatory sentences should petition the High Court for resentencing. The Appellant argued that 10 years is the minimum mandatory sentence under Section 8(3) of the Sexual Offences Act.
He also cited S Vs Malgsa[2001] and Fredrick Otieno Odero Vs Republic[2021] where it was held that excessive punishment does not serve the interest of justice nor society.
On the conduct of the Complainant the Appellant said that she referred to him as her husband and they stayed in same house for one week. He said the Complainant carried herself as an adult and went to the Appellant’s house and became a wife. The Appellant cited the English decision in Gillick Vs West Norfolkand Wisbech Area Health Authority (1985) where the House of Lords held that it is unrealistic to assume that teenagers do not and often seek sexual activity with their eyes open. They may not have attained of maturity but they may well have reached the ae of discretion and ae able to make intelligent and informed decisions about their lives.
The Appellant also submitted the Complainant made him believe she was 19 years and he urged the court to invoke the provisions of Section 8(5) of the Sexual Offences Act in his favour.
The Appellant also said the Trial Court did not award him with the remand period under Section 333(2) of the CPC. He urged the court to allow his appeal.
The Respondent Counsel filed submissions dated 19th November 2024 and opposed the appeal and said the ingredients of the offence of defilement had been proved to the required standards.
On sentence being huge and punitive the Respondent Counsel submitted that the sentence was illegal and in contravention of the provisions of Section 8(3) of the Sexual Offences Act which provides for a minimum sentence of 20 years imprisonment. The court was urged to enhance the sentence.
The Respondent urged the court to find that the conviction was safe, and uphold the decision of the Trial Magistrate on conviction and sentence.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issue for determination is whether the element of the Complainant’s age was proved beyond reasonable doubt and whether the Appellant’s defense under Section 8(5) of the Sexual Offences Act was considered by the Trial Magistrate.
On whether the element of the Complainant’s age was proved beyond reasonable doubt and whether the Appellant’s defense under Section 8(5) of the Sexual Offences Act was considered by the Trial Magistrate,
Section 8 (1) as read with 8(3) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (3) A person who commits an offence of defilement with a child between the age of twelve to fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant. From the evidence on record in the trial court and from the grounds of appeal and submissions, the elements of penetration and identification of the assailant are not in dispute. The Appellant and the Complainant were found co-habiting and as a result of their sexual interactions the Complainant became pregnant. It is the Appellant’s case that the Complainant is in-fact residing in his home with the child born out of that relationship. What is in contention is whether the age of the Complainant was proved to the required standards.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
From the evidence of PW1 she said she was 16 years and she alleged she was a form 2 drop out at an unknown school. PW1 said her Certificate of Birth showed she was born in 2006 and PW3 the Clinical Officer who examined PW1 also said the Complainant was 15 years old at the time he was examining her and she told him that she was cohabiting with a person known to her. By the time the Complainant was being examined she was pregnant following the sexual relationship she had with the Appellant.
PW2 the father of the Complainant said that he found the Appellant with a school girl. Although the Investigating Officer did not testify and produce the Certificate of Birth to confirm the exact age of the Complainant, it was the evidence of PW1,2 & 3 that the Complainant was a school girl and that she was 15 years at the time she was allegedly defiled. Going by the evidence of PW1,2 & 3 the complainant was therefore a child under Section 2 of the Children’s Act which defines a child to mean an individual who has not attained the age of eighteen years.
The Appellant raised the defense under Section 8(5) of the Sexual Offences Act that he was not aware the Complainant was a child and a school girl as she told him that she was 19 years old and she was working in a food kiosk as a waiter at Nyamarambe where he lived and that is why he took her as a wife and they cohabited as such.
The Trial Magistrate while dismissing the Appellant’s defense noted that the Complainant had visited the Appellant during the half-term break and was therefore not employed in any hotel. He also said that the Appellant’s defense was an afterthought as he never cross-examined the Complainant on age or about working in a hotel.
Section 8(5) and 8(6) of the Sexual Offence Act, No 3 of 2006 avails a defense to a person who is charged with the offence of defilement. The said provisions provide that;
Section 8(5) - “It is a defense 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 18 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.
Section 8(6) –
“The belief referred to in subsection 8(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.”
The Court of Appeal in the case of Eliud Waweru Wambui Vrs Republic (2019) eklr the issue of the Defense provided under Section 8(5) and (6) Of the Sexual Offences Act was discussed and it was stated thus;
“Subsection (5) states that it is a defense to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. We think it is rather curious provision in so far as it sets in conjunctive as opposed to disjunctive terms which seem to be more logical as opposed to the current rendition. We would think that once a person has actually been deceived into believing a certain state of things, it adds little to the require that his such belief be reasonably held. Indeed, a reading of subsection (6) seems to add a qualification to subsection 5(b) that separates it from the belief proceedings from deception in subsection (5)(a). we would therefor opine that the elements constituting a defence should be read disjunctively if the two sub sections are to make sense.………… we would find merit in the Applicants contention that in all circumstances of the case he reasonably believed that the complainant was over the age of 18 years. The burden of proving that deception or belief fell upon the Appellant, but the burden is on a balance of probabilities as is to be assessed on the basis of the appellants subjective view of the facts. Thus whereas indeed the complainant was still in school in form 4, that alone would not rule out a reasonable belief that she would be over 18 years old. It is germane to point out that a child need not deceive by way of actively telling a lie that she is over 18 years. We would give the term deceive the ordinary dictionary meaning which is to;“Deliberately cause (someone) to believe something that is not true or (of a thing) given a mistaken impression to” (As per the concise oxford English Dictionary, 12th Edition).So understood, we would think that had the two courts below properly directed their minds to the Appellants defence and the totality of the circumstances of this case, they would have in all likelihood have arrived at a different conclusion on it. It was a non-direction that they did not do so, rendering the conviction unsafe.We need to add as we dispose off this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a age younger than 16 years old. We think it is rather unrealistic to assume that teenagers and maturing adults in the since employed by the English house of lords in Gillick Vrs West Norefolk & Wisbech Area Health Authority (1985) 3 ALL ER 402, do not engage in, and often seek sexual activities with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process and not a series of disjointed leaps. As lord scarman put it in that case ( at page 421);“if the law should impose on the process of, “growing up” fixed limits where nature knows only a continuous process, the price would be artificially and lack of realism in an area where the law must be sensitive to human development and society change.” At page 422The law also referred to the judgment of chief justice Lord Parker in R vrs Howard (1965) 3 ALL ER 684“…. Where he ruled that in the case of prosecution charging rape of a girl under the age of 16 the crown must prove either lack of her consent or that she was not in a position to decide whether to consent or resist and added the comment that, “there are many girls who know full well what it is all about and can properly consent”.
In consideration that the Complainant said that she went to the Appellant’s house on her own volition using a boda boda instead of going back to school after half-term, and in consideration that she was even referring to the Appellant as her husband while giving her testimony in court and further considering that there was no evidence to prove where she was studying and also there was no evidence of her exact age this court finds that the Trial Magistrate ought to have found merit in the Appellant’s contention that in all circumstances of the case he reasonably believed that the Complainant was above the age of majority as the burden of proving that deception is on a balance of probabilities as it was to be assessed on the basis of the Appellants subjective view of the facts.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal has merit and the same is allowed.
The conviction is quashed and sentence set aside. The Appellant to be set at liberty forthwith unless lawfully detained.
Right of Appeal 14 days.
Dated, Signed and Delivered at Kisii this 24th day of June, 2025