[1] The appellant was arraigned before the Senior Principal Magistrate’s Court at Oyugis on the 20 th March 2024, charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2026. It was alleged that, on diverse dates between the 1 st day of July 2020 and the 31 st day of July 2020, at Miriu Sub location in Rachuonyo East Sub County within the County of Homa Bay, he intentionally caused his penis to penetrate the vagina of B A O, a child aged 14 years.
[2] In the alternative, the appellant was charged with the offence of committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on diverse dates between the 1 st day of July 2020 and the 31 st day of July 2020, at Miriu Sub location in Rachuonyo East Sub County within the County of Homa Bay, he intentionally touched the vagina of B A O, a child aged 14 years with his penis.
[3] The appellant denied the charges and the matter was fixed for trial before Hon. Ongeri , Senior Principal Magistrate. The appellant was ultimately found guilty of the substantive charge of defilement, convicted thereof and sentenced to serve 30 years’ imprisonment.
[4] Being dissatisfied with his conviction and sentence, the appellant filed this appeal on the following grounds:
[a] That he was a first offender who came into conflict with the law for the first time and ought to have benefitted from the leniency of the lower court.
[b] That the learned trial court acted on the wrong principles of law by convicting and sentencing him to serve 30 years’ imprisonment without taking judicial notice that the complainant was aged 15 years.
[c] That the appellant is remorseful and seeks for the court’s mercy for reduction of sentence to a manageable jail term.
[d] That he worked tirelessly to support his family and pleads for leniency to go and support his school going children.
[e] That the sentence of 30 years’ imprisonment is manifestly harsh and punitive considering the circumstances of the offence and the new jurisprudential developments.
[f] That the appeal on sentence is premised on the case of Evans Nyamari Ayako v Republic, Criminal Appeal No. 22 of 2018 (Kisumu).
[5] Accordingly, the appellant prayed that his appeal be allowed, and that the sentence of 30 years’ imprisonment be set aside.
[6] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 21 st January 2026. The appellant promptly filed his submissions dated 22 nd January 2026 in which he made it clear that his appeal is on sentence only. He nevertheless raised issues about the quality of the evidence adduced before the lower court and contended that the charge of defilement was not proved beyond reasonable doubt. He also posited that the charge was defective because the Police Case No. was erroneously reflected as No. 668/02/2024, which seemed to demonstrate that the offence was booked 3 years beforehand.
[7] It was also the contention of the appellant that the prosecution evidence was itself contradictory and therefore could not sustain a conviction. He cited Article 49 of the Constitution and the case of Peter Kungus v Republic, Nyeri Criminal Appeal No. 66 of 2006 to support his submission that he ought to have been given the benefit of the doubt arising from the contradictions.
[8] Further to the foregoing, the appellant urged the Court to find that the sentence of 30 years imposed on him by the lower court was not only excessive but was also passed in disregard of the current jurisprudence on sentencing of first offenders. He further submitted that mandatory minimum sentences such as the one imposed on him infringe on the right to dignity as provided for in Article 28 of the Constitution. He relied on S v Malga [2001] (2) (SCA) 1235, Fredrick Otieno Odero v Republic [2021] eKLR and Evans Wanjala Wanyonyi v Republic [2019] eKLR, among others, to buttress his submission that mandatory minimum sentences provided for in the Sexual Offences Act contravene Article 25 of the Constitution.
[9] Consequently, the appellant prayed that his appeal be allowed, the conviction recorded against him quashed and the sentence of 30 years’ imprisonment set aside.
[10] In the respondent’s written submissions dated 16 th December 2025, it was argued that the appellant was lawfully sentenced under Section 8(3) of the Sexual Offences Act. Counsel underscored the fact that at the time of the incident the complainant was aged 14 years. The respondent contended further that the lower court considered the aggravating circumstances brought out in the evidence adduced before it, in that the appellant was in a levirate union with the complainant’s mother and therefore was entrusted with parental care and protection of the minor, which he abused. Counsel also urged the Court to note that the complainant got pregnant as a result and gave birth to a child; and that a DNA test was conducted that linked the child’s paternity to the appellant.
[11] The respondent relied on Republic v Evans Nyamari Ayako (supra) and submitted that the sentencing discretion is confined to the limits set by Parliament; and that an appellate court cannot interfere with a lawful sentence. In the premises, the respondent prayed that the appeal against sentence be dismissed.
[12] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that I did not have the opportunity to see or hear the witnesses. In David Njuguna Wairimu v Republic [2010] eKLR, the Court of Appeal restated that:
“…the duty of the first appellate court is to analyse and re-evaluate evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the circumstances of the case come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision” .
[13] I have accordingly perused the record of the lower court. The complainant testified as PW1 and stated that the appellant was staying with them as their step-father; and that in July 2020 at about 5.00 p.m., while in her room after bathing, the appellant went there and demanded that they engage in sexual intercourse, or else he would to kill her as well as her mother. PW1 stated that the appellant forced her to lie on the bed and defiled her and warned her not to inform her mother about it. PW1 explained that her father had died and that the appellant was co-habiting with her mother at the time; and that, out of fear, she did not inform her mother about the incident.
[14] It was further the testimony of the complainant that she got pregnant as a result of the defilement and gave birth to a baby girl on 30 th March 2021. She added that it was not until 15 th March 2024 that she disclosed to her aunt, P A , that the appellant was the father of her child. She explained that, around that time, the appellant had started having sexual relations with her sister as well. It was further the evidence of the complainant that after she made the disclosure, the appellant disappeared and returned on 16 th March 2024 and demanded to have his child but she declined to release the baby. Thereafter, her mother reported the incident to one Charles Arogo who arrested the appellant and escorted him to Othoro Police Station.
[15] The complainant concluded her evidence by stating that she went to Othoro Police Station and was escorted to hospital by her mother and alongside a police officer for examination. She later went to Kisumu with her child for purposes of DNA testing. She identified her Certificate of Birth, P3 Form issued to her at Othoro Police Station and treatment notes given to her at Othoro Hospital before the lower court.
[16] The complainant’s mother, R A A (PW2) also testified before the lower court and confirmed that the complainant is her daughter; that she was cohabiting with the appellant after the death of her husband, and that they had cohabited for 5 years by the time the issue of the complainant’s defilement was revealed. PW2 stated that the complainant got pregnant and gave birth while in Class 8; and that she immediately asked her who was responsible for the pregnancy but the complainant declined to disclose the information at the time. PW2 further stated she later got to learn from her sister that the complainant had been defiled by the appellant. She called her brothers in law and informed them of the matter and the appellant was arrested on 17 th March 2024 and taken to the police station.
[17] PW2 further stated that she also went to Othoro Police Station and recorded her statement, after which she accompanied the complainant and a police officer to Othoro Hospital for purposes of examination. She also confirmed that the complainant and her child were taken to Kisumu for a DNA test.
[18] Charles Juma Arogo (PW3) also testified and stated that the complainant is his step sister, and PW2 his step-mother. He testified that he was present when the complainant’s aunties were questioning her about the father of her daughter; and that the complainant disclosed that the appellant was the father. PW3 confirmed that the appellant had inherited PW2 and had cohabited with her for about 5 years. He confirmed that he reported the matter to the area chief and thereafter caused the arrest of the appellant and escorted him to Othoro Police Station.
[19] The Clinical Officer at Othoro Level IV Hospital, Samuel Juma, testified before the lower court as PW4. His evidence was that he was on duty on the 19 th March 2024 when the complainant was presented to him for examination. She went to the facility with a history of having been defiled by a person known to her; and had given birth and the child was about 3 years old. PW4 further stated that he examined the minor but noted nothing significant in her genitalia. He recommended that DNA test be done. He produced the PRC Form, the P3 Form and the treatment notes he made as exhibits before the lower court.
[20] The last prosecution witness was PC(W) Jackline Akinyi (PW5) who was the investigating officer in the matter. She confirmed that upon the complaint of defilement being filed, she recorded statements from the witnesses and thereafter escorted the minor to hospital for examination. She also stated that the minor had a 3-year-old child who she alleged had been sired by the appellant. She further stated that, after the arraignment of the appellant before court, an order was made for DNA testing. She made arrangements for the same and received a report from the Government Chemist, which she produced before the lower court as the Prosecution’s Exhibit 5.
[21] The appellant, in his defence, denied the allegations against him. He gave a sworn statement in which he conceded that he knows the complainant as well as her mother (PW2); and that they started cohabiting with PW2 after the death of her husband. He conceded that they commenced cohabitation in 2016. The appellant then narrated how on the 17 th March 2024 he was arrested at night by nephews of his wife without being told the reason for his arrest. He was escorted to Othoro Police Station where he got to learn that he had been arrested for impregnating a minor. He was thereafter taken to court.
[22] In the light of the foregoing, the issues for determination in this appeal are:
[a] Whether the Prosecution proved their case against the appellant beyond reasonable doubt.
[b] Whether the sentence of 30 years’ imprisonment imposed by the lower court is harsh or excessive.
A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[23] For purposes of the substantive charge, of which the appellant was convicted and sentenced to 30 years’ imprisonment, Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
[24] Hence, the ingredients of defilement are: the age of the victim, the identity of the perpetrator and whether penetration occurred. This was underscored in C harles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 as follows:
“ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
[25] I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of Section 8(3) of the Sexual Offences Act:
[26] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus:
“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”.
[27] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[28] It is now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. In Edwin Nyambogo Onsongo v Republic [2016] eKLR for instance, the Court of Appeal held that:
“... 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.”
[29] And, in P.M.M. v Republic [2018] eKLR, it was held that:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[30] In this case, the age of the complainant was attested to by both the complainant (PW1) and her mother (PW2) both of whom testified that the minor was 14 years old at the material time. More importantly, the prosecution exhibited the complainant’s Certificate of Birth as the Prosecution’s Exhibit 1. The document gives the complainant’s date of birth as 11 th September 2005. She was therefore aged 14 years and 10 months as at July 2020. Therefore, and for all intents and purposes, the complainant was 14 years old because it is now trite that the months following the last birthday, if any, do not count for purposes of determining the age of a child, so long as they are less than one year. This was well explained by the Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR as hereunder:
"Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year."
[31] Moreover, Section 8(3) of the Sexual Offences Act provides for the age bracket of between 12 and 15 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration of the complainant:
[32] The complainant explained that, though she was defiled and impregnated in July 2020, she was threatened with death and therefore opted to remain silent. She did not inform her mother about it. By the time the matter came to the fore, she had already given birth to a baby girl who was a toddler at the time. It is for that reason that PW4 was unable to find anything significant in his examination of the complainant on 19 th March 2024. He advised that a DNA test be conducted instead; which was done. The report dated 12 th April 2024 was produced by PW5 as the Prosecution’s Exhibit 5. It shows that there as 99.99% more chances that the appellant is the biological father of the toddler B A , who is also the biological child of the complainant.
[33] It is true that there does not have to be a pregnancy to prove penetration. Indeed, in Evans Wanjala Wanyonyi v R [2019] eKLR it was held that:
“An essential ingredient in the offence of defilement is penetration and not impregnation.”
[34] Nevertheless pregnancy has been held to be an aspect of proof of penetration. For instance, in Wayu Omar Dololo v Republic [2014] eKLR, the decision of the trial court that pregnancy was proof of penetration was upheld on appeal. Here is what Hon. Mutuku, J. had to say, which I find apposite:
“The trial magistrate took judicial notice that a pregnancy results from a sexual activity and as such found penetration proved. On my part, I have examined the evidence carefully. At the time of examination by a doctor, the complainant was heavy with child and the pregnancy was visible as observed by the trial court. Indeed, at the time of hearing the complainant said she was nine months pregnant. A pregnancy is a biological condition that results from a sexual activity unless there is evidence that there was artificial implanting of fertilized ova into the uterus of a female human being...”
[35] Likewise, in Mbogo Raphael Chengo v Republic [2019] eKLR the Court of Appeal affirmed the position that the fact of pregnancy of a complainant in a defilement case is evidence that sexual intercourse had taken place and is therefore proof of penetration. There was therefore credible evidence adduced by the prosecution before the lower court in proof of penetration. It is also noteworthy that in the case of Kassim Ali v Republic [2006] KECA 156 (KLR) the Court of Appeal held that:
“…as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.
[36] Moreover, the proviso to Section 124 of the Evidence Act is explicit that:
“…where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
[37] I am therefore satisfied that credible evidence was adduced before the lower court by the prosecution in proof of penetration.
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[38] Needless to say that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), restated the position as follows:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[39] On the issue of the appellant’s identity, PW1 testified that she had known him since age 12 when he started cohabiting with her mother after the death of her father. In effect, the appellant was like a father to her and a member of their family. There is no doubt that she knew him well. According to the complainant, the incident in question occurred at about 5.00 p.m. during the day and therefore she could not have mistaken the appellant for somebody else.
[40] There is no dispute that as a result of the violation, the complainant got pregnant and gave birth to a baby whose paternity was determined by way of a DNA test. Section 36 of the Sexual Offences Act, thus in Subsection (1):
"...where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence."
[41] In this instance, DNA test was conducted and the result was positive in that it is more probable than not that the appellant is the father of the complainant’s daughter.
[42] The appellant impugned the admissibility of the DNA report and contended that it ought to have been produced by the Government Analyst who prepared it. The record of the lower court shows that no objection to the production of the report by PW5 was raised by the appellant. He likewise gave no indication that he wished to have the maker of the report cross-examined. He therefore has no basis for complaint granted the provisions of Section 77 of the Evidence Act, Cap 80 of the Laws of Kenya, that:
(1) In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.
(2) The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.
(3) When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.
[43] It is noteworthy too that in George Kioji v Republic, Cr. App. No. 270 of 2012 (Nyeri) the Court of Appeal pointed out that:
Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”
[44] In the premises, it is my finding that the offence of defilement under Section 8(1) as read with Section 8(3) of the Sexual Offences Act was proved by the Prosecution beyond reasonable doubt and therefore he was rightly convicted for defilement.
[45] In his submissions the appellant made reference to what he perceived to be contradictions in the evidence presented but did not pinpoint any of the contradictions. In John Nyaga Njuki & 4 Others v Republic , Cr. App. No. 160 of 2000, the Court of Appeal explained that:
“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”
[46] Likewise, in Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible. Here is what it had to say in this regard:
“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
B. On whether the sentence of 30 years is harsh or excessive:
[47] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[48] The penalty for the offence of defilement is prescribed in Section 8(3) of the Sexual Offences Act, which provides:
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
[49] The offence was committed against a minor of 14 years old. Hence, in the exercise of his discretion the learned magistrate took into consideration that relevant factors such as the fact that the appellant betrayed the trust bestowed on him by the minor’s mother, and the fact that the minor considered him a father figure. It is also an aggravating factor that the minor conceived at the tender age of 14 and had to drop out of school to look after her child.
[50] With regard to the minimum sentence provided for in Section 8(3) of the Sexual Offences Act, the appellant made reference to various authorities, including:
[a] Christopher Ochieng Olang [2018] eKLR
[b] Francis Karioko Muruatetu [2017] eKLR
[c] Jared Koita Injiri v Republic
[d] Maingi & others v Republic [2014] eKLR
[51] It is noteworthy that the Supreme Court has had occasion to reconsider its decision in Muruatetu I and gave directions vide Muruatetu II in 2021 as follows:
[14] It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two Petitioners who approached the Court for specific reliefs. The ultimate determination was confined to the issues presented by the Petitioners, and as framed by the Court.
[52] In the more recent decision of the Supreme Court in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) it restated its earlier decisions and held as follows:
53. In the Republic v Mwangi case, we explained as follows:
“(52)We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the ma
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[2] In the alternative, the appellant was charged with the offence of committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on diverse dates between the 1 st day of July 2020 and the 31 st day of July 2020, at Miriu Sub location in Rachuonyo East Sub County within the County of Homa Bay, he intentionally touched the vagina of B A O, a child aged 14 years with his penis.
[3] The appellant denied the charges and the matter was fixed for trial before Hon. Ongeri , Senior Principal Magistrate. The appellant was ultimately found guilty of the substantive charge of defilement, convicted thereof and sentenced to serve 30 years’ imprisonment.
[4] Being dissatisfied with his conviction and sentence, the appellant filed this appeal on the following grounds:
[a] That he was a first offender who came into conflict with the law for the first time and ought to have benefitted from the leniency of the lower court.
[b] That the learned trial court acted on the wrong principles of law by convicting and sentencing him to serve 30 years’ imprisonment without taking judicial notice that the complainant was aged 15 years.
[c] That the appellant is remorseful and seeks for the court’s mercy for reduction of sentence to a manageable jail term.
[d] That he worked tirelessly to support his family and pleads for leniency to go and support his school going children.
[e] That the sentence of 30 years’ imprisonment is manifestly harsh and punitive considering the circumstances of the offence and the new jurisprudential developments.
[f] That the appeal on sentence is premised on the case of Evans Nyamari Ayako v Republic, Criminal Appeal No. 22 of 2018 (Kisumu).
[5] Accordingly, the appellant prayed that his appeal be allowed, and that the sentence of 30 years’ imprisonment be set aside.
[6] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 21 st January 2026. The appellant promptly filed his submissions dated 22 nd January 2026 in which he made it clear that his appeal is on sentence only. He nevertheless raised issues about the quality of the evidence adduced before the lower court and contended that the charge of defilement was not proved beyond reasonable doubt. He also posited that the charge was defective because the Police Case No. was erroneously reflected as No. 668/02/2024, which seemed to demonstrate that the offence was booked 3 years beforehand.
[7] It was also the contention of the appellant that the prosecution evidence was itself contradictory and therefore could not sustain a conviction. He cited Article 49 of the Constitution and the case of Peter Kungus v Republic, Nyeri Criminal Appeal No. 66 of 2006 to support his submission that he ought to have been given the benefit of the doubt arising from the contradictions.
[8] Further to the foregoing, the appellant urged the Court to find that the sentence of 30 years imposed on him by the lower court was not only excessive but was also passed in disregard of the current jurisprudence on sentencing of first offenders. He further submitted that mandatory minimum sentences such as the one imposed on him infringe on the right to dignity as provided for in Article 28 of the Constitution. He relied on S v Malga [2001] (2) (SCA) 1235, Fredrick Otieno Odero v Republic [2021] eKLR and Evans Wanjala Wanyonyi v Republic [2019] eKLR, among others, to buttress his submission that mandatory minimum sentences provided for in the Sexual Offences Act contravene Article 25 of the Constitution.
[9] Consequently, the appellant prayed that his appeal be allowed, the conviction recorded against him quashed and the sentence of 30 years’ imprisonment set aside.
[10] In the respondent’s written submissions dated 16 th December 2025, it was argued that the appellant was lawfully sentenced under Section 8(3) of the Sexual Offences Act. Counsel underscored the fact that at the time of the incident the complainant was aged 14 years. The respondent contended further that the lower court considered the aggravating circumstances brought out in the evidence adduced before it, in that the appellant was in a levirate union with the complainant’s mother and therefore was entrusted with parental care and protection of the minor, which he abused. Counsel also urged the Court to note that the complainant got pregnant as a result and gave birth to a child; and that a DNA test was conducted that linked the child’s paternity to the appellant.
[11] The respondent relied on Republic v Evans Nyamari Ayako (supra) and submitted that the sentencing discretion is confined to the limits set by Parliament; and that an appellate court cannot interfere with a lawful sentence. In the premises, the respondent prayed that the appeal against sentence be dismissed.
[12] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that I did not have the opportunity to see or hear the witnesses. In David Njuguna Wairimu v Republic [2010] eKLR, the Court of Appeal restated that:
“…the duty of the first appellate court is to analyse and re-evaluate evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the circumstances of the case come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision” .
[13] I have accordingly perused the record of the lower court. The complainant testified as PW1 and stated that the appellant was staying with them as their step-father; and that in July 2020 at about 5.00 p.m., while in her room after bathing, the appellant went there and demanded that they engage in sexual intercourse, or else he would to kill her as well as her mother. PW1 stated that the appellant forced her to lie on the bed and defiled her and warned her not to inform her mother about it. PW1 explained that her father had died and that the appellant was co-habiting with her mother at the time; and that, out of fear, she did not inform her mother about the incident.
[14] It was further the testimony of the complainant that she got pregnant as a result of the defilement and gave birth to a baby girl on 30 th March 2021. She added that it was not until 15 th March 2024 that she disclosed to her aunt, P A , that the appellant was the father of her child. She explained that, around that time, the appellant had started having sexual relations with her sister as well. It was further the evidence of the complainant that after she made the disclosure, the appellant disappeared and returned on 16 th March 2024 and demanded to have his child but she declined to release the baby. Thereafter, her mother reported the incident to one Charles Arogo who arrested the appellant and escorted him to Othoro Police Station.
[15] The complainant concluded her evidence by stating that she went to Othoro Police Station and was escorted to hospital by her mother and alongside a police officer for examination. She later went to Kisumu with her child for purposes of DNA testing. She identified her Certificate of Birth, P3 Form issued to her at Othoro Police Station and treatment notes given to her at Othoro Hospital before the lower court.
[16] The complainant’s mother, R A A (PW2) also testified before the lower court and confirmed that the complainant is her daughter; that she was cohabiting with the appellant after the death of her husband, and that they had cohabited for 5 years by the time the issue of the complainant’s defilement was revealed. PW2 stated that the complainant got pregnant and gave birth while in Class 8; and that she immediately asked her who was responsible for the pregnancy but the complainant declined to disclose the information at the time. PW2 further stated she later got to learn from her sister that the complainant had been defiled by the appellant. She called her brothers in law and informed them of the matter and the appellant was arrested on 17 th March 2024 and taken to the police station.
[17] PW2 further stated that she also went to Othoro Police Station and recorded her statement, after which she accompanied the complainant and a police officer to Othoro Hospital for purposes of examination. She also confirmed that the complainant and her child were taken to Kisumu for a DNA test.
[18] Charles Juma Arogo (PW3) also testified and stated that the complainant is his step sister, and PW2 his step-mother. He testified that he was present when the complainant’s aunties were questioning her about the father of her daughter; and that the complainant disclosed that the appellant was the father. PW3 confirmed that the appellant had inherited PW2 and had cohabited with her for about 5 years. He confirmed that he reported the matter to the area chief and thereafter caused the arrest of the appellant and escorted him to Othoro Police Station.
[19] The Clinical Officer at Othoro Level IV Hospital, Samuel Juma, testified before the lower court as PW4. His evidence was that he was on duty on the 19 th March 2024 when the complainant was presented to him for examination. She went to the facility with a history of having been defiled by a person known to her; and had given birth and the child was about 3 years old. PW4 further stated that he examined the minor but noted nothing significant in her genitalia. He recommended that DNA test be done. He produced the PRC Form, the P3 Form and the treatment notes he made as exhibits before the lower court.
[20] The last prosecution witness was PC(W) Jackline Akinyi (PW5) who was the investigating officer in the matter. She confirmed that upon the complaint of defilement being filed, she recorded statements from the witnesses and thereafter escorted the minor to hospital for examination. She also stated that the minor had a 3-year-old child who she alleged had been sired by the appellant. She further stated that, after the arraignment of the appellant before court, an order was made for DNA testing. She made arrangements for the same and received a report from the Government Chemist, which she produced before the lower court as the Prosecution’s Exhibit 5.
[21] The appellant, in his defence, denied the allegations against him. He gave a sworn statement in which he conceded that he knows the complainant as well as her mother (PW2); and that they started cohabiting with PW2 after the death of her husband. He conceded that they commenced cohabitation in 2016. The appellant then narrated how on the 17 th March 2024 he was arrested at night by nephews of his wife without being told the reason for his arrest. He was escorted to Othoro Police Station where he got to learn that he had been arrested for impregnating a minor. He was thereafter taken to court.
[22] In the light of the foregoing, the issues for determination in this appeal are:
[a] Whether the Prosecution proved their case against the appellant beyond reasonable doubt.
[b] Whether the sentence of 30 years’ imprisonment imposed by the lower court is harsh or excessive.
A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[23] For purposes of the substantive charge, of which the appellant was convicted and sentenced to 30 years’ imprisonment, Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
[24] Hence, the ingredients of defilement are: the age of the victim, the identity of the perpetrator and whether penetration occurred. This was underscored in C harles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 as follows:
“ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
[25] I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of Section 8(3) of the Sexual Offences Act:
[26] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus:
“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”.
[27] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[28] It is now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. In Edwin Nyambogo Onsongo v Republic [2016] eKLR for instance, the Court of Appeal held that:
“... 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.”
[29] And, in P.M.M. v Republic [2018] eKLR, it was held that:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[30] In this case, the age of the complainant was attested to by both the complainant (PW1) and her mother (PW2) both of whom testified that the minor was 14 years old at the material time. More importantly, the prosecution exhibited the complainant’s Certificate of Birth as the Prosecution’s Exhibit 1. The document gives the complainant’s date of birth as 11 th September 2005. She was therefore aged 14 years and 10 months as at July 2020. Therefore, and for all intents and purposes, the complainant was 14 years old because it is now trite that the months following the last birthday, if any, do not count for purposes of determining the age of a child, so long as they are less than one year. This was well explained by the Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR as hereunder:
"Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year."
[31] Moreover, Section 8(3) of the Sexual Offences Act provides for the age bracket of between 12 and 15 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration of the complainant:
[32] The complainant explained that, though she was defiled and impregnated in July 2020, she was threatened with death and therefore opted to remain silent. She did not inform her mother about it. By the time the matter came to the fore, she had already given birth to a baby girl who was a toddler at the time. It is for that reason that PW4 was unable to find anything significant in his examination of the complainant on 19 th March 2024. He advised that a DNA test be conducted instead; which was done. The report dated 12 th April 2024 was produced by PW5 as the Prosecution’s Exhibit 5. It shows that there as 99.99% more chances that the appellant is the biological father of the toddler B A , who is also the biological child of the complainant.
[33] It is true that there does not have to be a pregnancy to prove penetration. Indeed, in Evans Wanjala Wanyonyi v R [2019] eKLR it was held that:
“An essential ingredient in the offence of defilement is penetration and not impregnation.”
[34] Nevertheless pregnancy has been held to be an aspect of proof of penetration. For instance, in Wayu Omar Dololo v Republic [2014] eKLR, the decision of the trial court that pregnancy was proof of penetration was upheld on appeal. Here is what Hon. Mutuku, J. had to say, which I find apposite:
“The trial magistrate took judicial notice that a pregnancy results from a sexual activity and as such found penetration proved. On my part, I have examined the evidence carefully. At the time of examination by a doctor, the complainant was heavy with child and the pregnancy was visible as observed by the trial court. Indeed, at the time of hearing the complainant said she was nine months pregnant. A pregnancy is a biological condition that results from a sexual activity unless there is evidence that there was artificial implanting of fertilized ova into the uterus of a female human being...”
[35] Likewise, in Mbogo Raphael Chengo v Republic [2019] eKLR the Court of Appeal affirmed the position that the fact of pregnancy of a complainant in a defilement case is evidence that sexual intercourse had taken place and is therefore proof of penetration. There was therefore credible evidence adduced by the prosecution before the lower court in proof of penetration. It is also noteworthy that in the case of Kassim Ali v Republic [2006] KECA 156 (KLR) the Court of Appeal held that:
“…as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.
[36] Moreover, the proviso to Section 124 of the Evidence Act is explicit that:
“…where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
[37] I am therefore satisfied that credible evidence was adduced before the lower court by the prosecution in proof of penetration.
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[38] Needless to say that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), restated the position as follows:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[39] On the issue of the appellant’s identity, PW1 testified that she had known him since age 12 when he started cohabiting with her mother after the death of her father. In effect, the appellant was like a father to her and a member of their family. There is no doubt that she knew him well. According to the complainant, the incident in question occurred at about 5.00 p.m. during the day and therefore she could not have mistaken the appellant for somebody else.
[40] There is no dispute that as a result of the violation, the complainant got pregnant and gave birth to a baby whose paternity was determined by way of a DNA test. Section 36 of the Sexual Offences Act, thus in Subsection (1):
"...where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence."
[41] In this instance, DNA test was conducted and the result was positive in that it is more probable than not that the appellant is the father of the complainant’s daughter.
[42] The appellant impugned the admissibility of the DNA report and contended that it ought to have been produced by the Government Analyst who prepared it. The record of the lower court shows that no objection to the production of the report by PW5 was raised by the appellant. He likewise gave no indication that he wished to have the maker of the report cross-examined. He therefore has no basis for complaint granted the provisions of Section 77 of the Evidence Act, Cap 80 of the Laws of Kenya, that:
(1) In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.
(2) The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.
(3) When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.
[43] It is noteworthy too that in George Kioji v Republic, Cr. App. No. 270 of 2012 (Nyeri) the Court of Appeal pointed out that:
Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”
[44] In the premises, it is my finding that the offence of defilement under Section 8(1) as read with Section 8(3) of the Sexual Offences Act was proved by the Prosecution beyond reasonable doubt and therefore he was rightly convicted for defilement.
[45] In his submissions the appellant made reference to what he perceived to be contradictions in the evidence presented but did not pinpoint any of the contradictions. In John Nyaga Njuki & 4 Others v Republic , Cr. App. No. 160 of 2000, the Court of Appeal explained that:
“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”
[46] Likewise, in Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible. Here is what it had to say in this regard:
“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
B. On whether the sentence of 30 years is harsh or excessive:
[47] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[48] The penalty for the offence of defilement is prescribed in Section 8(3) of the Sexual Offences Act, which provides:
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
[49] The offence was committed against a minor of 14 years old. Hence, in the exercise of his discretion the learned magistrate took into consideration that relevant factors such as the fact that the appellant betrayed the trust bestowed on him by the minor’s mother, and the fact that the minor considered him a father figure. It is also an aggravating factor that the minor conceived at the tender age of 14 and had to drop out of school to look after her child.
[50] With regard to the minimum sentence provided for in Section 8(3) of the Sexual Offences Act, the appellant made reference to various authorities, including:
[a] Christopher Ochieng Olang [2018] eKLR
[b] Francis Karioko Muruatetu [2017] eKLR
[c] Jared Koita Injiri v Republic
[d] Maingi & others v Republic [2014] eKLR
[51] It is noteworthy that the Supreme Court has had occasion to reconsider its decision in Muruatetu I and gave directions vide Muruatetu II in 2021 as follows:
[14] It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two Petitioners who approached the Court for specific reliefs. The ultimate determination was confined to the issues presented by the Petitioners, and as framed by the Court.
[52] In the more recent decision of the Supreme Court in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) it restated its earlier decisions and held as follows:
53. In the Republic v Mwangi case, we explained as follows:
“(52)We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the ma
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