(Being an appeal against the conviction and sentence by Hon. D. Wasike (PM) in Kilifi Chief Magistrates Court (SO)
Case No. E098 of 2021)
1. The appellant herein, James Sifa Kahindi, was convicted and sentenced to 15 years imprisonment by the Chief Magistrate’s Court, Kilifi for the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that on diverse dates between 31 October 2021 and 10 November 2021 at Kiwandani area within Kilifi County, intentionally and unlawfully caused his penis to penetrate the vagina of M.D.K a child aged 15 years old. The appellant faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act by intentionally and unlawfully touching the vagina of M.D.K.Having been convicted on the primary offence, no finding was made on the alternative charge.
2. The background of the matter is that on 15 November 2021, the appellant was charged with the offence of defilement which he denied prompting the trial where the prosecution called five ( 5 ) witnesses. The complainant, PW4, who testified on 13 May 2024, stated that she was 20 years old, lived in Viwandani and was married to the appellant. It was her evidence that she was born on 13 May 2004 and that on 31 October 2021, she lived with her grandmother (PW 2) before running away after she was beaten by her uncles. She ran away and went to the shopping center where she met with the appellant who agreed to assist her and took her to his house. That day, the appellant slept at his friend’s house. She lived with the appellate for one month before they started having sex. Afterwards, the appellant was arrested and she was taken to Mwangaza Rescue Home where she stayed from October 2021 until January 2022 before she ran away. In June 2022, she delivered a child.
3. Her testimony was corroborated by PW3, Kadzo Baya, her grandmother who confirmed that in October 2021, the complainant disappeared whereby she reported to Upendo Shika school for orphans. After searching for a while, the complainant was traced to the appellant's home. She, together with a village elder, took away the complainant and reported the matter to the police leading to the the arrest of the appellant. It was her evidence that the complainant was taken to the hospital for medical examination where tests showed that she was pregnant. This made her very angry and she declined to live with the complainant who was then taken to Mwangaza Rescue Home. She could not remember when the complainant was born but stated that she was 16 aye res old.
4. PW2, Lemmy Ngala, a Director at Upendo Shika school testified that the complainant who was as student at the school missed school on 1 October 2021. Upon inquiries, he together with PW3, reported her missing prompting a search where she was found at the appellant's house on 10 November 2021. They reported to Kilifi police station and the complainant was rescued and taken to hospital for examination. She was thereafter taken to school but ran away on 21 December 2021 and upon inquires from her guardian, he was informed that she had gone back to the appellant's house.
5. PW1, a clinical officer based at Kilifi hospital testified that the complainant was examined on 10 November 2021 after being reported to have ran away from home 10 days ago. Examinations established that her hymen was broken, she had contracted a sexually transmitted disease and was pregnant. He produced a P3 form and Post Rape Care form as exhibits 1 and 2.
6. PW5, the investigating officer gave evidence that on 1 November 2021, PW2 and PW3 reported that the complainant had ran away the previous day and was missing. Seven (7) days later, the complainant and appellant were taken to the police station by the chief. He filled a P3 form and referred the complainant to the hospital for examination. He produced the complainant's birth certificate as exhibit 3 which showed that she was born on 30 May 2006.
7. At the close of the prosecution’s case, the trial court ruled that a prima facie case had been established and placed the appellant on his defence. The appellant through sworn evidence, denied committing the offence stating that the complainant had told him that she was 19 years old and was not in school. He went on to state that her family knew that he was living with her and did not tell him that she was a minor. He reiterated that he asked the complainant and that she told him she had finished standard 8 and was not in school.
8. At the close of the trial, the trial court rendered judgment, found the appellant guilty as charged, convicted him and sentenced him to15 years imprisonment.
9. Aggrieved, the appellant filed the present appeal where he raised the following grounds;
i. The trial court erred in law and fact by failing to avail him the defence under section 8 (5) of the Sexual Offences Act, considering the deceit by the appellant concerning her age.
ii. The trial court erred in law and fact by ignoring crucial extenuating factors.
iii. The trial court erred in law and fact by failing to observe Section 3 of the Sexual Offences Act.
10. The appeal was heard through written submissions and both parties were directed to file written submissions. However, only the appellant complied and filed written submission which he relied upon. The Respondent opposed the appeal and informed that court that it was unable to file submissions due to pressure of work but that this being the first appeal, tit would rely on the record.
The appellant submitted that the trial court erred by failing to consider or find that the defence under Section 8 (5) of the Sexual Offences Act had been proved thereby exonerating him. He submitted that the complainant presented herself as an adult and told him that she was 19 years old. It was his case that she gave her date of birth as 13 May 2004 during her testimony which was inconsistent with her actual date of birth which is 30 May 2006 as per her birth certificate. He argued that her deception and situation at the time he found her made it very difficult for him to tell that she was under the age of 18 years. He submitted that their relationship was consensual and led to a marriage that was within the knowledge of her parents.He cited the case of J.N.N vs Republic, Criminal Appeal No. 71 of 2013 in support of her case. He further placed reliance on the case of Eliud Waweru Wambui vs Republic (2019) eKLR, urging the court to consider the circumstances of the case and evidence therein.
11. The appellant further submitted that the trial court failed to consider his defence and the fact that he was deceived by the complainant who told him that she was 19 years old, which are extenuating factors that exonerated him from the offence. He cited the case of Sammy Chacha vs Republic (2020) eKLR, where the court of appeal held, inter alia, that the standard of proof required to establish the defence under Section 8 (5) of the Sexual Offences Act, was on a balance of probabilities.
12. As regards the sentence, he submitted that the court erred by imposing a maximum penalty despite the absence of coercion or use of force in the commission of the crime. He argued that Section 8 of the Act uses the words “liable to” which in their ordinary sense do not impose a minimum mandatory sentence. Rather, he took the view that the said words imposed a mandatory sentence. He cited the cases of Arthur Muya vs Republic (2015) eKLR and D.W.M vs Republic (2016) eKLR to support his assertions. He urged the court to review and reduce his sentence in view of the mitigating factors in his favour.
Analysis and determination
13. This being the first appeal, the court has a duty to re-evaluate and examine the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of Oiruri Mose Vs R (2013) eKLR.
14. The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
15. In analysing the evidence adduced before the trial court, the court is minded of the fact that unlike the trial court, it did not have the benefit of taking evidence from the witnesses first hand and observe their demeanor for which due allowance shall be given.
16. Having perused and considered the record of appeal together with submissions by the appellant, the court finds the following issues for determination: -
i. Whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
ii. Whether the defence under Section 8 (5) of the Sexual Offences Act was established.
iii. Whether the sentence was harsh and excessive in view of the law and mitigating factors
I. Whether the ingredients of the offence of defilement were proved beyond reasonable doubt
17. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty
of an offence termed as defilement.
(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. ”
18. The specific elements or ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani V Republic , Criminal Appeal No. 72 Of 2013 and George Opondo Olunga Vs R (2016) eKLR .
a. Proof of penetration
19. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . The Act defines “Genital organs” to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To prove penetration, it must be shown that the appellant inserted either the whole or part of his genital organ into the genital organs of the complainant.
20. In the case of Mark Oiruri Mose vs Republic(2013) eKLR , the court of appeal stated;
“Many times, the attacker does bot fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside a girl’s organ”
21. Further, The Supreme Court of Uganda in the case of Bassita vs. Uganda S. C. Criminal Appeal No. 35 of 1995 with regard to proof of penetration stated thus: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
22. Moreso, the court of appeal in Kassim Ali vs Republic [2006] eKLR, the observed as follows:
“So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”.
23. In the instant case, the complainant, PW4 testified that she went to live with the appellant on 31 October 2021 and had sex with him after one month. She subsequently conceived and delivered in June 2022. PW1, the clinical officer testified that medical examinations conducted on the complainant on 10 November 2021 established that her hymen was broken, she had contracted a sexually transmitted infection and was pregnant further corroborating PW4 ‘s evidence. PW2 and PW3’s evidence showed that the complainant and appellant were living together as at the date of arrest giving credence to the complainant's testimony. The appellant, in his defence admitted living with the complainant, stating that she told him that she was 19 years old which he believed. T he court finds that there was sufficient evidence to prove penetration as an ingredient of the offence.
b. Proof of age of the victim
24. The age of the victim is a critical ingredient of the offence and must be proved. In the case of Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR), the court held;
“Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
25. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vs Republic, Criminal Appeal No. 21 Of 2015 [2017].
26. Both he complainant, PW4 and her guardian PW3 her grandmother gave conflicting evidence concerning the age of the complainant. The complainant testified that she was born on 13 May 2004 while her grandmother testified that she was about 16 years old. However, PW5 the investigating officer produced the complainant’s birth certificate as exhibit 3 which showed that she was born on 30 May 2006 hence 15 years between October/November 2021 when the offence occurred. The court finds that on the strength of exhibit 3, the age of the complainant was conclusively proved.
c. Positive identification of the perpetrator
27. Identification can be achieved in many ways including through recognition. The court of appeal, in Anjononi & another vs R (1980) KLR 59, stated thus;
“recognition of an assailant is more satisfactory, more reassuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.”
28. The complainant testified that she lived with the appellant whom they had sex with after one month of living together from October 2021. She thereafter conceived and continued living with the appellant until they were arrested in his house by PW3 and a village elder. The appellant confirmed knowing the complainant and living with her. The court finds that identification in this case was through recognition.
29. The court finds that all ingredients of the offence were proved beyond reasonable doubt.Having found that, the court will now consider whether the appellant was deceived by the complainant on her age and if so, whether the defence under Section 8 (5) of the Sexual Offences Act had accrued.
II. Whether the appellant established the defence under Section 8 (5) of the Sexual offences Act.
30. The appellant’s appeal almost entire rested on this matter. The appellant submitted that the complainant deceived him that she was 19 years old, that he took time to establish this but found it difficult owing to the circumstances under-which he found the complainant, that the complainant’s parents knew and were aware that the two lived together and that the relationship was consensual.
31. Se ction 8 (5) and (6) of the Act provides thus:
“8 (5). It is a defence to a charge under this section if -
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
(6). The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”
53. In the case of Charo vs Republic (2016) KEHC 5619 (KLR) the court of appeal had this to say concerning section 8 (5) and (6) of the Act,
“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 a rather curious provision in so far as it is set in conjunctive as opposed to disjunctive terms which would 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 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 proceeding from deception in subsection (5)(a). We would therefore opine that the elements constituting the defence should be read disjunctively if the two sub-sections are to make sense.”
32. The High Court in the case of J.N.N vs Republic (2015) KEHC 7554 (KLR) , had this to say in a case involving similar facts: -
“ On strict legal evaluation of the evidence adduced by the complainant, the trial court cannot be faulted for reaching the finding that the prosecution had established to the required standard of proof beyond any reasonable doubt that indeed the Appellant had defiled the complainant. The three ingredients to establish the charge were present in the evidence adduced by the complainant: the identity of the perpetrator was not in doubt. The Appellant and the complainant were neighbours. They had related as lovers for two months prior to the fateful week. Penetration was established first by the testimony of the complainant and secondly by a medical report which was produced in evidence. The mother of the complainant, PW2 R W N produced a birth certificate which established that the complainant was born on 29th May 1994. The complainant was therefore 15 years old at the time of the incident. That would have been the end of the story. An open and shut case.
However, this was not the case. It was the complainant who took herself to the house of the Appellant to seek refuge. She had been chased away by her mother when she learnt that she had been expelled from school for sneaking out of the school without permission of the school authority. By her own admission, the complainant was a truant. She was not interested in schooling. She drank alcohol. She smoked bhang. She had decided that she was ready to get married. She had identified the Appellant as her husband. In fact, she testified that she went to live with the Appellant as his wife. There was no evidence which was adduced by the prosecution witnesses to point to the fact that it was the Appellant who encouraged the complainant to abandon school. The evidence adduced by the complainant and her mother clearly points to the fact that it was the complainant who voluntarily took herself to the house of the Appellant. She willingly had sexual intercourse with the Appellant.
This court acknowledges the fact that a girl child of below the age of 18 years lacks capacity to give consent for sexual intercourse. However, in the peculiar circumstances of this case, it was clear that the defence available to the Appellant under Section 8(5) of the Sexual Offences Act was not considered by the trial court. By her own admission, the complainant was no longer interested in schooling and desired to get married. She took herself to the house of the Appellant and started living there as the Appellant’s wife.”
33. Turning back to the instant case, the appellant testified that the the complainant had told him that she was 19 years old and was not in school. He went on to state that her family knew that he was living with her and did not tell him that she was a minor. He reiterated that he asked the complainant and that she told him she had finished standard 8 and was not in school.
34. The trial court in its judgement had this to say concerning the appellant's defence; “the defence by the accused did not have any weight. He only stated that the complainant lied to him that she was 19 years old.”
35. It is apparent that the trial court did not evaluate the appellant’s defence in view of Section 8 (5) of the Sexual Offences Act . The court simply dismissed it thereby falling into grave error. Section 8 (5) of the Act provides a complete defence to an appellant he proves on a balance of probability that the complainant, deceived him that she was over 18 years old and he reasonably believed so. For the defence to crystallize, subsection 6 requires a court to have regard to all circumstances of the case, including any steps the accused took to ascertain the age of the complainant, in determining this.
36. It is clear from the record that the appellant gave evidence on oath that the complainant deceived him that she was 19 years old and that she was no longer in school, which he reasonably believed to be true. He testified that he took steps to verify the fact but this was made difficult in view of the circumstances. He further testified that the complainant’s parents were aware of fact that the two were living together. This evidence was not challenged or rebutted by the prosecution.
37. The court finds merit in the appellant’s contention that taking into account the circumstances of the case, he reasonably believed that the complainant was over the age of 19 years. The burden of proving that deception or belief fell upon the appellant, but the burden is on a balance of probabilities and is to be assessed on the basis of the appellant’s subjective view of the facts. The relationship between the two was consensual and they started living together as husband and wife as asserted by the complainant. The court is satisfied that the appellant is entitled to the defence under Section 8 (5) of the Sexual Offences Act.
Final Disposition
38. Section 354 (3) (a) (i) of the Criminal Procedure Code empowers the High Court i n an appeal against a conviction, to reverse the finding and sentence, and acquit or discharge the accused. Consequently, the court makes the following orders: -
a) The appeal has merit and is accordingly allowed.
b) The conviction and sentence by the trial court is quashed and the appellant is acquitted forthwith.
39. It is so ordered.
Dated, Signed and Delivered Virtually at Nairobi on this 17 th September 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Case No. E098 of 2021)
1. The appellant herein, James Sifa Kahindi, was convicted and sentenced to 15 years imprisonment by the Chief Magistrate’s Court, Kilifi for the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that on diverse dates between 31 October 2021 and 10 November 2021 at Kiwandani area within Kilifi County, intentionally and unlawfully caused his penis to penetrate the vagina of M.D.K a child aged 15 years old. The appellant faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act by intentionally and unlawfully touching the vagina of M.D.K.Having been convicted on the primary offence, no finding was made on the alternative charge.
2. The background of the matter is that on 15 November 2021, the appellant was charged with the offence of defilement which he denied prompting the trial where the prosecution called five ( 5 ) witnesses. The complainant, PW4, who testified on 13 May 2024, stated that she was 20 years old, lived in Viwandani and was married to the appellant. It was her evidence that she was born on 13 May 2004 and that on 31 October 2021, she lived with her grandmother (PW 2) before running away after she was beaten by her uncles. She ran away and went to the shopping center where she met with the appellant who agreed to assist her and took her to his house. That day, the appellant slept at his friend’s house. She lived with the appellate for one month before they started having sex. Afterwards, the appellant was arrested and she was taken to Mwangaza Rescue Home where she stayed from October 2021 until January 2022 before she ran away. In June 2022, she delivered a child.
3. Her testimony was corroborated by PW3, Kadzo Baya, her grandmother who confirmed that in October 2021, the complainant disappeared whereby she reported to Upendo Shika school for orphans. After searching for a while, the complainant was traced to the appellant's home. She, together with a village elder, took away the complainant and reported the matter to the police leading to the the arrest of the appellant. It was her evidence that the complainant was taken to the hospital for medical examination where tests showed that she was pregnant. This made her very angry and she declined to live with the complainant who was then taken to Mwangaza Rescue Home. She could not remember when the complainant was born but stated that she was 16 aye res old.
4. PW2, Lemmy Ngala, a Director at Upendo Shika school testified that the complainant who was as student at the school missed school on 1 October 2021. Upon inquiries, he together with PW3, reported her missing prompting a search where she was found at the appellant's house on 10 November 2021. They reported to Kilifi police station and the complainant was rescued and taken to hospital for examination. She was thereafter taken to school but ran away on 21 December 2021 and upon inquires from her guardian, he was informed that she had gone back to the appellant's house.
5. PW1, a clinical officer based at Kilifi hospital testified that the complainant was examined on 10 November 2021 after being reported to have ran away from home 10 days ago. Examinations established that her hymen was broken, she had contracted a sexually transmitted disease and was pregnant. He produced a P3 form and Post Rape Care form as exhibits 1 and 2.
6. PW5, the investigating officer gave evidence that on 1 November 2021, PW2 and PW3 reported that the complainant had ran away the previous day and was missing. Seven (7) days later, the complainant and appellant were taken to the police station by the chief. He filled a P3 form and referred the complainant to the hospital for examination. He produced the complainant's birth certificate as exhibit 3 which showed that she was born on 30 May 2006.
7. At the close of the prosecution’s case, the trial court ruled that a prima facie case had been established and placed the appellant on his defence. The appellant through sworn evidence, denied committing the offence stating that the complainant had told him that she was 19 years old and was not in school. He went on to state that her family knew that he was living with her and did not tell him that she was a minor. He reiterated that he asked the complainant and that she told him she had finished standard 8 and was not in school.
8. At the close of the trial, the trial court rendered judgment, found the appellant guilty as charged, convicted him and sentenced him to15 years imprisonment.
9. Aggrieved, the appellant filed the present appeal where he raised the following grounds;
i. The trial court erred in law and fact by failing to avail him the defence under section 8 (5) of the Sexual Offences Act, considering the deceit by the appellant concerning her age.
ii. The trial court erred in law and fact by ignoring crucial extenuating factors.
iii. The trial court erred in law and fact by failing to observe Section 3 of the Sexual Offences Act.
10. The appeal was heard through written submissions and both parties were directed to file written submissions. However, only the appellant complied and filed written submission which he relied upon. The Respondent opposed the appeal and informed that court that it was unable to file submissions due to pressure of work but that this being the first appeal, tit would rely on the record.
The appellant submitted that the trial court erred by failing to consider or find that the defence under Section 8 (5) of the Sexual Offences Act had been proved thereby exonerating him. He submitted that the complainant presented herself as an adult and told him that she was 19 years old. It was his case that she gave her date of birth as 13 May 2004 during her testimony which was inconsistent with her actual date of birth which is 30 May 2006 as per her birth certificate. He argued that her deception and situation at the time he found her made it very difficult for him to tell that she was under the age of 18 years. He submitted that their relationship was consensual and led to a marriage that was within the knowledge of her parents.He cited the case of J.N.N vs Republic, Criminal Appeal No. 71 of 2013 in support of her case. He further placed reliance on the case of Eliud Waweru Wambui vs Republic (2019) eKLR, urging the court to consider the circumstances of the case and evidence therein.
11. The appellant further submitted that the trial court failed to consider his defence and the fact that he was deceived by the complainant who told him that she was 19 years old, which are extenuating factors that exonerated him from the offence. He cited the case of Sammy Chacha vs Republic (2020) eKLR, where the court of appeal held, inter alia, that the standard of proof required to establish the defence under Section 8 (5) of the Sexual Offences Act, was on a balance of probabilities.
12. As regards the sentence, he submitted that the court erred by imposing a maximum penalty despite the absence of coercion or use of force in the commission of the crime. He argued that Section 8 of the Act uses the words “liable to” which in their ordinary sense do not impose a minimum mandatory sentence. Rather, he took the view that the said words imposed a mandatory sentence. He cited the cases of Arthur Muya vs Republic (2015) eKLR and D.W.M vs Republic (2016) eKLR to support his assertions. He urged the court to review and reduce his sentence in view of the mitigating factors in his favour.
Analysis and determination
13. This being the first appeal, the court has a duty to re-evaluate and examine the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of Oiruri Mose Vs R (2013) eKLR.
14. The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
15. In analysing the evidence adduced before the trial court, the court is minded of the fact that unlike the trial court, it did not have the benefit of taking evidence from the witnesses first hand and observe their demeanor for which due allowance shall be given.
16. Having perused and considered the record of appeal together with submissions by the appellant, the court finds the following issues for determination: -
i. Whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
ii. Whether the defence under Section 8 (5) of the Sexual Offences Act was established.
iii. Whether the sentence was harsh and excessive in view of the law and mitigating factors
I. Whether the ingredients of the offence of defilement were proved beyond reasonable doubt
17. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty
of an offence termed as defilement.
(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. ”
18. The specific elements or ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani V Republic , Criminal Appeal No. 72 Of 2013 and George Opondo Olunga Vs R (2016) eKLR .
a. Proof of penetration
19. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . The Act defines “Genital organs” to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To prove penetration, it must be shown that the appellant inserted either the whole or part of his genital organ into the genital organs of the complainant.
20. In the case of Mark Oiruri Mose vs Republic(2013) eKLR , the court of appeal stated;
“Many times, the attacker does bot fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside a girl’s organ”
21. Further, The Supreme Court of Uganda in the case of Bassita vs. Uganda S. C. Criminal Appeal No. 35 of 1995 with regard to proof of penetration stated thus: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
22. Moreso, the court of appeal in Kassim Ali vs Republic [2006] eKLR, the observed as follows:
“So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”.
23. In the instant case, the complainant, PW4 testified that she went to live with the appellant on 31 October 2021 and had sex with him after one month. She subsequently conceived and delivered in June 2022. PW1, the clinical officer testified that medical examinations conducted on the complainant on 10 November 2021 established that her hymen was broken, she had contracted a sexually transmitted infection and was pregnant further corroborating PW4 ‘s evidence. PW2 and PW3’s evidence showed that the complainant and appellant were living together as at the date of arrest giving credence to the complainant's testimony. The appellant, in his defence admitted living with the complainant, stating that she told him that she was 19 years old which he believed. T he court finds that there was sufficient evidence to prove penetration as an ingredient of the offence.
b. Proof of age of the victim
24. The age of the victim is a critical ingredient of the offence and must be proved. In the case of Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR), the court held;
“Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
25. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vs Republic, Criminal Appeal No. 21 Of 2015 [2017].
26. Both he complainant, PW4 and her guardian PW3 her grandmother gave conflicting evidence concerning the age of the complainant. The complainant testified that she was born on 13 May 2004 while her grandmother testified that she was about 16 years old. However, PW5 the investigating officer produced the complainant’s birth certificate as exhibit 3 which showed that she was born on 30 May 2006 hence 15 years between October/November 2021 when the offence occurred. The court finds that on the strength of exhibit 3, the age of the complainant was conclusively proved.
c. Positive identification of the perpetrator
27. Identification can be achieved in many ways including through recognition. The court of appeal, in Anjononi & another vs R (1980) KLR 59, stated thus;
“recognition of an assailant is more satisfactory, more reassuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.”
28. The complainant testified that she lived with the appellant whom they had sex with after one month of living together from October 2021. She thereafter conceived and continued living with the appellant until they were arrested in his house by PW3 and a village elder. The appellant confirmed knowing the complainant and living with her. The court finds that identification in this case was through recognition.
29. The court finds that all ingredients of the offence were proved beyond reasonable doubt.Having found that, the court will now consider whether the appellant was deceived by the complainant on her age and if so, whether the defence under Section 8 (5) of the Sexual Offences Act had accrued.
II. Whether the appellant established the defence under Section 8 (5) of the Sexual offences Act.
30. The appellant’s appeal almost entire rested on this matter. The appellant submitted that the complainant deceived him that she was 19 years old, that he took time to establish this but found it difficult owing to the circumstances under-which he found the complainant, that the complainant’s parents knew and were aware that the two lived together and that the relationship was consensual.
31. Se ction 8 (5) and (6) of the Act provides thus:
“8 (5). It is a defence to a charge under this section if -
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
(6). The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”
53. In the case of Charo vs Republic (2016) KEHC 5619 (KLR) the court of appeal had this to say concerning section 8 (5) and (6) of the Act,
“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 a rather curious provision in so far as it is set in conjunctive as opposed to disjunctive terms which would 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 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 proceeding from deception in subsection (5)(a). We would therefore opine that the elements constituting the defence should be read disjunctively if the two sub-sections are to make sense.”
32. The High Court in the case of J.N.N vs Republic (2015) KEHC 7554 (KLR) , had this to say in a case involving similar facts: -
“ On strict legal evaluation of the evidence adduced by the complainant, the trial court cannot be faulted for reaching the finding that the prosecution had established to the required standard of proof beyond any reasonable doubt that indeed the Appellant had defiled the complainant. The three ingredients to establish the charge were present in the evidence adduced by the complainant: the identity of the perpetrator was not in doubt. The Appellant and the complainant were neighbours. They had related as lovers for two months prior to the fateful week. Penetration was established first by the testimony of the complainant and secondly by a medical report which was produced in evidence. The mother of the complainant, PW2 R W N produced a birth certificate which established that the complainant was born on 29th May 1994. The complainant was therefore 15 years old at the time of the incident. That would have been the end of the story. An open and shut case.
However, this was not the case. It was the complainant who took herself to the house of the Appellant to seek refuge. She had been chased away by her mother when she learnt that she had been expelled from school for sneaking out of the school without permission of the school authority. By her own admission, the complainant was a truant. She was not interested in schooling. She drank alcohol. She smoked bhang. She had decided that she was ready to get married. She had identified the Appellant as her husband. In fact, she testified that she went to live with the Appellant as his wife. There was no evidence which was adduced by the prosecution witnesses to point to the fact that it was the Appellant who encouraged the complainant to abandon school. The evidence adduced by the complainant and her mother clearly points to the fact that it was the complainant who voluntarily took herself to the house of the Appellant. She willingly had sexual intercourse with the Appellant.
This court acknowledges the fact that a girl child of below the age of 18 years lacks capacity to give consent for sexual intercourse. However, in the peculiar circumstances of this case, it was clear that the defence available to the Appellant under Section 8(5) of the Sexual Offences Act was not considered by the trial court. By her own admission, the complainant was no longer interested in schooling and desired to get married. She took herself to the house of the Appellant and started living there as the Appellant’s wife.”
33. Turning back to the instant case, the appellant testified that the the complainant had told him that she was 19 years old and was not in school. He went on to state that her family knew that he was living with her and did not tell him that she was a minor. He reiterated that he asked the complainant and that she told him she had finished standard 8 and was not in school.
34. The trial court in its judgement had this to say concerning the appellant's defence; “the defence by the accused did not have any weight. He only stated that the complainant lied to him that she was 19 years old.”
35. It is apparent that the trial court did not evaluate the appellant’s defence in view of Section 8 (5) of the Sexual Offences Act . The court simply dismissed it thereby falling into grave error. Section 8 (5) of the Act provides a complete defence to an appellant he proves on a balance of probability that the complainant, deceived him that she was over 18 years old and he reasonably believed so. For the defence to crystallize, subsection 6 requires a court to have regard to all circumstances of the case, including any steps the accused took to ascertain the age of the complainant, in determining this.
36. It is clear from the record that the appellant gave evidence on oath that the complainant deceived him that she was 19 years old and that she was no longer in school, which he reasonably believed to be true. He testified that he took steps to verify the fact but this was made difficult in view of the circumstances. He further testified that the complainant’s parents were aware of fact that the two were living together. This evidence was not challenged or rebutted by the prosecution.
37. The court finds merit in the appellant’s contention that taking into account the circumstances of the case, he reasonably believed that the complainant was over the age of 19 years. The burden of proving that deception or belief fell upon the appellant, but the burden is on a balance of probabilities and is to be assessed on the basis of the appellant’s subjective view of the facts. The relationship between the two was consensual and they started living together as husband and wife as asserted by the complainant. The court is satisfied that the appellant is entitled to the defence under Section 8 (5) of the Sexual Offences Act.
Final Disposition
38. Section 354 (3) (a) (i) of the Criminal Procedure Code empowers the High Court i n an appeal against a conviction, to reverse the finding and sentence, and acquit or discharge the accused. Consequently, the court makes the following orders: -
a) The appeal has merit and is accordingly allowed.
b) The conviction and sentence by the trial court is quashed and the appellant is acquitted forthwith.
39. It is so ordered.
Dated, Signed and Delivered Virtually at Nairobi on this 17 th September 2026
JOSEPH KIPKOECH BIOMDO
JUDGE