(An Appeal from the decision by Hon. Charles Obulutsa Chief Magiatrate in Kilifi S.O No. E062 of 2024 dated 28 th January, 2026)
1. The appellant was charged with defilement of a child contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. He also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of Sexual Offences Act. The appellant was found guilty of the main charge and sentenced to serve 15 years imprisonment.
2. The particulars were that on diverse dates between 24 th of March,2024 and 18 th April, 2024 at (particulars withheld) within Kilifi County unlawfully and intentionally committed an act which cause his genital organ namely penis to penetrate into female genital organ namely vagina of M.M.K a child aged 16 years.
3. The appellant being aggrieved by the conviction and sentence of the trial magistrate lodged an appeal to the High Court. The appellant raised several grounds which are contained in the petition of appeal and the amended grounds of appeal accompanying his submissions. Those grounds can be compressed to three grounds: Firstly, that the ingredients of the offence of defilement were not proved as required. Secondly, the prosecution case was riddled with contradictions and inconsistencies. Thirdly, that the trial court failed to consider his defence.
4. In short, the appellant contends that the prosecution failed to discharge the legal and evidential burden, and as such the conviction and sentence should be set aside.
5. The appellant relied on his undated written submissions. The appellant argued that the age of the complainant was not proved. He challenged the birth certificate stating that its inclusion was left in question. He further argued that the documents to wit, the P3 Form, PRC Form and Child Health Card were marked for identification and were not produced as exhibits. He relied on the case of Des Raji Sharma vs Reginam (1953) 19 E.A.C.A 310.
6. The appellant further argued that in view of the failure by the doctor to produce the medical documents, the element of penetration was never proved and the trial court faulted in relying on the word of the complainant.
7. The appellant further argued that he should benefit from the defence contemplated under Section 8(5) of the Sexual Offences Act as the prosecution failed to call evidence to show that complainant was indeed a student as alleged. To him the complainant was roaming in the streets and she was therefore a consenting adult going by her evidence that she used to meet the man who is alleged to have defiled her on several occasions.
8. Finally, the appellant faulted the trial court for failing to consider the period he spent in the custody pending the trial when meting the sentence contrary to Section 333(2) of the Criminal Procedure Code.
9. The appeal is contested by the state through submissions dated 20 th May, 2026. The respondent argued that the appellant was accorded fair trial contrary to his assertion in the first ground of appeal in his petition pf appeal.
10. Regarding whether the prosecution proved all the ingredients of the offence of defilement the state argued that age was proved by production of child health card which revealed that the complainant was aged 16 years.
11. The state further argued that penetration was proved through the evidence of the complainant which was corroborated by the medical evidence adduced in the form of P3 Form and PRC Form.
12. On identification the state argued that the appellant seduced the complainant, gave her his phone number and had sexual intercourse with her severally. Being a person the complainant spent quite a number of times with, chances of mistaken identity are remote.
13. The state further argued that there were no contradictions and inconsistencies in the evidence adduced by the prosecution witnesses as the same was cogent, consistent and corroborative. Reliance was placed on the case of Richard Munene vs Republic (2018) e KLR.
14. On the trial court failure to consider the period the appellant spent in custody before he was sentenced, it was argued that the sentence meted on the appellant was lawful and failure to consider the same did not vitiate the lawfulness of the sentence.
15. Finally, on the submission by the appellant that the trial court did not consider his defence, the state argued that the trial court duly considered the appellant’s defence and found that the same did not rebut the overwhelming evidence adduced by the prosecution. The state urged the court to dismiss the appeal.
16. This is a first appeal to the High Court. As expected I have examined the record, re-evaluated the facts and drawn my own independent conclusions. I have done saw not overlooking the fact that I did not have the advantage of hearing and seeing the witnesses testify in court. (See Okeno vs R (1972) E.A 32, Njoroge vs R (1987) KLR 19, Felix Kanda vs R Eldoret Criminal Appeal No. 177 of 2011 (2013) KLR.
17. The appellant was charged under Section 8(1) as read with Section 8(4) of the Sexual Offences Act. These sections provide:
“8(1) Any person who commits an act causing penetration with a child is guilty of an offence termed defilement.
8(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term not less than fifteen years.”
18. Further in considering the foregoing provisions the court in the case of Simon Oloo vs Republic (2022) e KLR set out the essential ingredients which the prosecution must establish to sustain a conviction in a defilement case. The court held:
“To sustain a conviction in a defilement charge, certain elements must be proved beyond reasonable doubt. The first element is whether there was penetration of the complainant’s genitalia; second is whether the complainant is a child and of what age; finally, whether the penetration was done by the appellant.”
19. I will start by considering whether the complainant was a child and of what age. According to PW1 the complainant she told the court that she was born on 21 st December, 2008 and that at the time she gave evidence in court she was aged 17 years. Contrary to the assertion by the appellant that age was not proved because the inclusion of the birth certificate was in question, I am satisfied that prosecution produced the complainant’s birth certificate showing that she was born on 21 st December, 2008. A child health card was also produced showing the same date of birth as indicated in the birth certificate. The offence was committed on diverse dates between 24 th March, 2024 and 18 th April, 2024. It is therefore clear that the complainant was aged 16 years which is within the bracket of the penal provision of Section 8(4) of the Sexual Offences Act.
20. I will next consider the element of penetration. Penetration is defined under Section 2 of the Sexual Offences Act to mean; “The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
21. In the instant case the complainant testified that she met with the appellant who gave her his telephone contact number and asked her to call him. She called him and they met by the road. The appellant took her to the bush and they had sex. They repeated sexual intercourse again at the same place. The appellant also took her to his place at night and they had sex. She was also found at the appellant’s home. The foregoing evidence is corroborated by the medical evidence adduced which showed that the complainant’s hymen was broken. There was clear proof of penetration.
22. The next issue for consideration is whether the penetration was done by the appellant. It is the evidence of the complainant that the appellant lured her to the bush and they had sex. This did not happen once. Indeed, the complainant when she went missing she was found in the appellant’s house. There can be doubt that the appellant was known to the complainant. Further when PW2, PW3 and PW4 went looking for the complainant, she was found in the house of the appellant. This is overwhelming evidence that the appellant was positively identified as the perpetrator.
23. The appellant argued that the trial court did not consider his defence. I have looked at the trial court judgment and I find that the trial court duly considered the appellant’s unsworn statement and found that the same failed to substantively address the overwhelming case by the prosecution. I have equally looked at the said defence and I find the same a red herring.
24. The appellant attempted to argue that the P3 Form, PRC Form and the child health record were not produced in court but only marked for identification. The proceedings shows that the same were actually marked for identification, but from the lower court record, the said documents were actually produced as exhibits hence that argument cannot stand.
25. The appellant attempted to introduce the defence contemplated under Section 8(5) of the Sexual Offences Act in his submissions. Under the said section, it is defence to the charge of defilement if it is proved that the child deceived the accused person to into believing that she was over the age of eighteen years at the time of the alleged commission of the offence, and the accused reasonably believed that indeed she was above eighteen years.
26. It is notable that when an accused raises the defence contemplated under Section 8(5) of the Act the burden shifts to him to prove that the child deceived him into believing that she was above eighteen and he reasonably believed the child in the circumstances.
27. In this case the appellant did not raise the said defence before the trial court for consideration and he is estopped from raising the same in submissions.
28. Finally, the appellant argued that the trial court did not take into consideration the period spent in custody pending the trial pursuant to Section 333(2) of the Criminal Procedure Code. I agree with the appellant that the trial court did not consider the period the appellant was in custody. The record shows that the appellant was admitted to bail and bond but he absconded. He was arrested and taken to court on 15 th July, 2024. He remained in custody until the case was concluded. Much as the sentence imposed was lawful, the same ought to have started running from 15 th July, 2024.
29. In the circumstances of the foregoing, I find the appeal on conviction unmerited and the same is dismissed. Regarding the sentence the same shall run from 15 th July, 2024.
30. The upshot is that the appeal is dismissed save that the sentence shall run from 15 th July, 2024.
Dated, signed and delivered virtually this 16 th day of July, 2026.
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually
Ms. Mutua for state appearing virtually
Ms. Otwo Court Assistant.
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1. The appellant was charged with defilement of a child contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. He also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of Sexual Offences Act. The appellant was found guilty of the main charge and sentenced to serve 15 years imprisonment.
2. The particulars were that on diverse dates between 24 th of March,2024 and 18 th April, 2024 at (particulars withheld) within Kilifi County unlawfully and intentionally committed an act which cause his genital organ namely penis to penetrate into female genital organ namely vagina of M.M.K a child aged 16 years.
3. The appellant being aggrieved by the conviction and sentence of the trial magistrate lodged an appeal to the High Court. The appellant raised several grounds which are contained in the petition of appeal and the amended grounds of appeal accompanying his submissions. Those grounds can be compressed to three grounds: Firstly, that the ingredients of the offence of defilement were not proved as required. Secondly, the prosecution case was riddled with contradictions and inconsistencies. Thirdly, that the trial court failed to consider his defence.
4. In short, the appellant contends that the prosecution failed to discharge the legal and evidential burden, and as such the conviction and sentence should be set aside.
5. The appellant relied on his undated written submissions. The appellant argued that the age of the complainant was not proved. He challenged the birth certificate stating that its inclusion was left in question. He further argued that the documents to wit, the P3 Form, PRC Form and Child Health Card were marked for identification and were not produced as exhibits. He relied on the case of Des Raji Sharma vs Reginam (1953) 19 E.A.C.A 310.
6. The appellant further argued that in view of the failure by the doctor to produce the medical documents, the element of penetration was never proved and the trial court faulted in relying on the word of the complainant.
7. The appellant further argued that he should benefit from the defence contemplated under Section 8(5) of the Sexual Offences Act as the prosecution failed to call evidence to show that complainant was indeed a student as alleged. To him the complainant was roaming in the streets and she was therefore a consenting adult going by her evidence that she used to meet the man who is alleged to have defiled her on several occasions.
8. Finally, the appellant faulted the trial court for failing to consider the period he spent in the custody pending the trial when meting the sentence contrary to Section 333(2) of the Criminal Procedure Code.
9. The appeal is contested by the state through submissions dated 20 th May, 2026. The respondent argued that the appellant was accorded fair trial contrary to his assertion in the first ground of appeal in his petition pf appeal.
10. Regarding whether the prosecution proved all the ingredients of the offence of defilement the state argued that age was proved by production of child health card which revealed that the complainant was aged 16 years.
11. The state further argued that penetration was proved through the evidence of the complainant which was corroborated by the medical evidence adduced in the form of P3 Form and PRC Form.
12. On identification the state argued that the appellant seduced the complainant, gave her his phone number and had sexual intercourse with her severally. Being a person the complainant spent quite a number of times with, chances of mistaken identity are remote.
13. The state further argued that there were no contradictions and inconsistencies in the evidence adduced by the prosecution witnesses as the same was cogent, consistent and corroborative. Reliance was placed on the case of Richard Munene vs Republic (2018) e KLR.
14. On the trial court failure to consider the period the appellant spent in custody before he was sentenced, it was argued that the sentence meted on the appellant was lawful and failure to consider the same did not vitiate the lawfulness of the sentence.
15. Finally, on the submission by the appellant that the trial court did not consider his defence, the state argued that the trial court duly considered the appellant’s defence and found that the same did not rebut the overwhelming evidence adduced by the prosecution. The state urged the court to dismiss the appeal.
16. This is a first appeal to the High Court. As expected I have examined the record, re-evaluated the facts and drawn my own independent conclusions. I have done saw not overlooking the fact that I did not have the advantage of hearing and seeing the witnesses testify in court. (See Okeno vs R (1972) E.A 32, Njoroge vs R (1987) KLR 19, Felix Kanda vs R Eldoret Criminal Appeal No. 177 of 2011 (2013) KLR.
17. The appellant was charged under Section 8(1) as read with Section 8(4) of the Sexual Offences Act. These sections provide:
“8(1) Any person who commits an act causing penetration with a child is guilty of an offence termed defilement.
8(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term not less than fifteen years.”
18. Further in considering the foregoing provisions the court in the case of Simon Oloo vs Republic (2022) e KLR set out the essential ingredients which the prosecution must establish to sustain a conviction in a defilement case. The court held:
“To sustain a conviction in a defilement charge, certain elements must be proved beyond reasonable doubt. The first element is whether there was penetration of the complainant’s genitalia; second is whether the complainant is a child and of what age; finally, whether the penetration was done by the appellant.”
19. I will start by considering whether the complainant was a child and of what age. According to PW1 the complainant she told the court that she was born on 21 st December, 2008 and that at the time she gave evidence in court she was aged 17 years. Contrary to the assertion by the appellant that age was not proved because the inclusion of the birth certificate was in question, I am satisfied that prosecution produced the complainant’s birth certificate showing that she was born on 21 st December, 2008. A child health card was also produced showing the same date of birth as indicated in the birth certificate. The offence was committed on diverse dates between 24 th March, 2024 and 18 th April, 2024. It is therefore clear that the complainant was aged 16 years which is within the bracket of the penal provision of Section 8(4) of the Sexual Offences Act.
20. I will next consider the element of penetration. Penetration is defined under Section 2 of the Sexual Offences Act to mean; “The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
21. In the instant case the complainant testified that she met with the appellant who gave her his telephone contact number and asked her to call him. She called him and they met by the road. The appellant took her to the bush and they had sex. They repeated sexual intercourse again at the same place. The appellant also took her to his place at night and they had sex. She was also found at the appellant’s home. The foregoing evidence is corroborated by the medical evidence adduced which showed that the complainant’s hymen was broken. There was clear proof of penetration.
22. The next issue for consideration is whether the penetration was done by the appellant. It is the evidence of the complainant that the appellant lured her to the bush and they had sex. This did not happen once. Indeed, the complainant when she went missing she was found in the appellant’s house. There can be doubt that the appellant was known to the complainant. Further when PW2, PW3 and PW4 went looking for the complainant, she was found in the house of the appellant. This is overwhelming evidence that the appellant was positively identified as the perpetrator.
23. The appellant argued that the trial court did not consider his defence. I have looked at the trial court judgment and I find that the trial court duly considered the appellant’s unsworn statement and found that the same failed to substantively address the overwhelming case by the prosecution. I have equally looked at the said defence and I find the same a red herring.
24. The appellant attempted to argue that the P3 Form, PRC Form and the child health record were not produced in court but only marked for identification. The proceedings shows that the same were actually marked for identification, but from the lower court record, the said documents were actually produced as exhibits hence that argument cannot stand.
25. The appellant attempted to introduce the defence contemplated under Section 8(5) of the Sexual Offences Act in his submissions. Under the said section, it is defence to the charge of defilement if it is proved that the child deceived the accused person to into believing that she was over the age of eighteen years at the time of the alleged commission of the offence, and the accused reasonably believed that indeed she was above eighteen years.
26. It is notable that when an accused raises the defence contemplated under Section 8(5) of the Act the burden shifts to him to prove that the child deceived him into believing that she was above eighteen and he reasonably believed the child in the circumstances.
27. In this case the appellant did not raise the said defence before the trial court for consideration and he is estopped from raising the same in submissions.
28. Finally, the appellant argued that the trial court did not take into consideration the period spent in custody pending the trial pursuant to Section 333(2) of the Criminal Procedure Code. I agree with the appellant that the trial court did not consider the period the appellant was in custody. The record shows that the appellant was admitted to bail and bond but he absconded. He was arrested and taken to court on 15 th July, 2024. He remained in custody until the case was concluded. Much as the sentence imposed was lawful, the same ought to have started running from 15 th July, 2024.
29. In the circumstances of the foregoing, I find the appeal on conviction unmerited and the same is dismissed. Regarding the sentence the same shall run from 15 th July, 2024.
30. The upshot is that the appeal is dismissed save that the sentence shall run from 15 th July, 2024.
Dated, signed and delivered virtually this 16 th day of July, 2026.
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually
Ms. Mutua for state appearing virtually
Ms. Otwo Court Assistant.
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