REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CRIMINAL APPEAL NO. E146 OF 2024
KATANA MAHENZO …….………………………………….............................................…………….. APPELLANT
VERSUS
REPUBLIC ………………………………………………….....................................…………………. RESPONDENT
(Being an appeal against the conviction and sentence by Hon. ONALO J.K OLGA (SRM) in Malindi CM (SO) Case No. E027 of 2020)
JUDGEMENT
1. The appellant herein, Katana Mahenzo, was convicted on 24 November 2023 by the Chief Magistrate’s Court, Malindi 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 and sentenced to 18 years imprisonment. Aggrieved, he filed the present appeal challenging both conviction and sentence.
2. The particulars of the offence are that on the 2 nd day of October 2020 at Thalatha meli area in Malindi Sub- County within Kilifi County, intentionally caused his penis to penetrate into the vagina of E.N.T a girl aged 15 years. The appellant faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act, with particulars stating that on the 2 nd day of October 2020 at Thalatha meli area in Malindi Sub- County within Kilifi County, intentionally committed an indecent act by touching the vagina of E.N.T a girl aged 15 years by using his penis.
3. The appellant denied the charges prompting the trial where the prosecution called four (4) witnesses. PW1, E.N.T the complainant testified that she was born on 14 May 2005 hence 15 years old and a form 1 pupil at the material time. She produced a birth certificate (exhibit 1) as evidence. It was her evidence that on 2 October 2020 at about noon, she was playing in an unfinished building at Talatha road with a friend (name withheld) when the appellant appeared and accused them of playing in his house. He held the complainant by hand and pulled her inside one of the rooms. On seeing this, her friend ran away.
4. The appellant harassed her and asked her to remove her clothes. While she was in the process on removing her short, he removed her underwear by force and it tore. The appellant then told her to hold the wall with both hands and inserted his pennis in her vagina and anus. She further stated that he threatened to kill her if she screamed and she complied. After sometime, she managed to scream which attracted PW2 who went to the scene and found the appellant defiling the complainant.
5. PW2, testified that on 2 October 2020 he while working, he heard some noises from an unfinished building nearby and went to inquire. On reached there he went inside one of the rooms where he found the appellant standing behind the complainant defiling her. Upon inquiring the appellnat said he was punishing her. He intervened and asked the complainant to report the incident to her father.
6. The incident was reported to PW 3 Cpl Winnie Wambua at Malindi Police Station on the same day by the complainant who was accompanied by her mother and they were referred to hospital. PW4 testified that the complainant went to Malindi Sub- County hospital where she was examined. The medical examination revealed that she was anxious and emotional, her hymen was broken, she had bruises on the labia minora, her vagina was inflamed, she had bruises on the anal orifice and was found with spermatozoa. Her underwear was also torn. The medical officer concluded that there was evidence of vaginal penetration and anal penetration.
7. Put on his defence, the appellant elected to give unsworn evidence. He denied committing the offence but claimed that he found the complainant and another boy at the scene. It was his evidence that he called PW2 who was his neighbor and told him to ask the two what they were doing. Thereafter, he left the scene, went home only to be arrested later and charged with the defilement.
8. The trial court rendered judgment on 24 November 2023 where it found the appellant guilty of defilement as charged and sentenced him to 18 years imprisonment.
9. Aggrieved, the appellant filed the present appeal where he raised three (3) grounds of appeal:
i. The trial court erred in both law and fact by failing to subject E.N.T who was a person of tender age, to Voire Dire prior to testifying as required by law in contravention of Section 19 (1) of the Oaths and Statutory Declarations Act.
ii. The trial court erred in both law and fact by failing to consider the sharp contradictions, inconsistencies and invariances in the prosecution’s case.
iii. The trial court erred in both law and fact not considering the accused defence.
10. At the hearing of the appeal, the appellant elected to rely on his written submissions in which he argued all the grounds globally but independently . He contended that PW1 was below 18 years and a child of tender years who should have been subjected to Voire Dire prior to testifying in order to determine if she understood the nature of oaths. He made reference to the case of R vs Patrick Kathurima (Nyeri) CRA 137 Of 2014 to support his assertions.
11. On the second ground, he argued that PW1, PW2, PW3 and PW4 were not consistent witnesses and should not have been relied by the trial court. He submitted that their evidence was fabricated, contradictory, un-corroborated and hence unsafe to form the basis for the conviction and sentence. He relied on the cases of Dener Kishan Pandya Vs R. App No. 106 of 1950 EACA 93 and Kazungu Mramba Mweni vs R. CA 220 of 2007 to affirm his argument that where evidence is contradictory, the contradictions affect the credibility of the entire prosecution case.
12. On the third ground, he submitted that the trial court failed to consider his evidence which created doubt that should have been applied in his favour. He faulted the court for relying on the prosecution evidence to convict him without weighing it against his evidence. He cited the case of Ozaki & Another vs the State where the court held that the defence of Alibi by an accused person is to be proved on a balance of probabilities and that for it to be rejected, it must be weighed against the evidence offered by the prosecution. He argued that the prosecution did not prove the allegations against him beyond reasonable doubt and urged the court to allow the appeal and set aside the conviction and sentence.
13. The Respondent opposed the appeal and filed written submissions which they relied on. They also filed and served upon the appellant a Notice of Cross Appeal dated 30 th April 2026 where they contended that the sentence of 18 years imprisonment ought to be reversed or varied to 20 years or to the extent and manner provided for by the law.
14. The Respondent submitted that this being the first appellate court, the court has a duty to revisit the evidence tendered before the trial court, re-evaluate it, analyze it and come to its own independent conclusion on the matter bearing in mind that it did not have an advantage of hearing or observing the demeanor the witnesses. They relied on the case of Okemo Vs R (1977) EALR 32 and the Court of Appeal case of Mark Oiruri Moses Vs R (2013) eKLR to buttress their argument.
15. The Respondent maintained that the trial court adhered to the provisions of Section 110 and 111 of the Evidence Act , Cap 80 throughout the trial and urged the court to dismiss the allegations that these sections were violated. On the allegations of contradictions in the evidence against the appellant, it was submitted that the evidence adduced against the Appellant was cogent, consistent and corroborated.
16. The Respondent further contended that the appellant did not bring out any contradictions during cross -examination or in the evidence adduced in his defence and that all requisite elements constituting the offence of defilement were proved beyond reasonable doubt. On this point, the Respondent relied on the Court of Appeal decision in case of Richard Munene Vs R (2018) eKLR where the court stated regarding contradictions or inconsistency in the evidence of the prosecution witnesses:
“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law, however, that it is not every flirting contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that the accused person will be entitled to benefit from it.”
17. On the allegation that the prosecution did not prove the case beyond reasonable doubt, it was submitted for the Respondent that the three (3) ingredients that constitute the offence of defilement under Section 8 (1) of the Sexual Offences Act, being the victim’s age, penetration and identity of the perpetrator were all proved beyond reasonable doubt. Reliance was placed in the cases of George Opondo Olunga Vs R (2016) eKLR , Daisy Chepkoech Vs R (2022) eKLR , Francis Omuroni Vs Uganda, Court of Appeal Criminal Case No. 2 of 2000 and R Vs Turnbull & Others (1976) 3 All ER 549 to support this assertion.
18. The Respondent contended that the trial court duly considered and analyzed the defence by the Appellant in determining the case contrary to the submissions by the Appellant. Reference was made to Page 44 and 46 of the Record of Appeal to show that indeed the Appellant’s evidence which was based on his unsworn testimony was indeed considered but found to lack any probative value. Reliance was placed in the case of May Vs R, C.A Criminal Appeal No. 24 Of 1979 (1981) KLR 129 to support the assertion that the Appellant’s unsworn statement had no probative value. The Respondent concluded that the appeal lacked merit and urged the court to dismiss it, while allowing the cross appeal.
Analysis and determination
19. 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. 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.”
20. With that in mind, the court will proceed to determine the appeal. 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. ”
21. 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. In the case of Charles Wamukoya Karani V Republic , Criminal Appeal No. 72 Of 2013 the court stated; “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
22. Similarly, in George Opondo Olunga Vs R (2016) eKLR , the court of appeal held that the offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and proper identification of the perpetrator. These ingredients are provided for under section 8 (1) of the Sexual Offences Act and must be proven for a conviction to issue.
23. Drawing from the above, the issues for determination in this appeal are as follows: -
a) Whether there was penetration.
b) Age of the victim.
c) Positive identification of the perpetrator.
24. In determining this appeal, the court has analysed the facts of the case, examined and re-evaluated the evidence on record, the grounds of appeal filed by the appellant, written submissions in support thereof, written submissions by the respondent, the merit of the cross-appeal and relevant case law on the subject.
Proof of penetration
25. 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 .
26. “Genital organs” is defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the genital organs of the Appellant into the genital organs of the victim, E.N.T.
27. The evidence on record is that on 2 nd October 2020 at about noon E.N.T, the victim aged 15 years and a form 1 student in a local school was playing with her friend (name withheld) in an unfinished building at Talatha road when the appellant appeared and accused them of playing in his house. He held the complainant by hand and pulled her inside one of the rooms. On seeing this, her friend ran away.
28. The appellant harassed her and asked her to remove her clothes which she described as Kipande (short), leso tied around it and a shirt that she had worn. While she was in the process on removing her short, he removed her underwear by force and it tore. The Appellant then told her to hold the wall with both hands and inserted his pennis in her vagina and anus. She testified that he threatened to kill her if she screamed and she complied. She stated that after sometime, she managed to scream which attracted PW2 Sammy Ngare who went to the scene and found the appellant defiling the complainant.
29. PW2, testified; “I went to slowly to the house. On reaching, I found Mahenzo ‘akibaka mtoto mdogo’ Alikuwa akimfira. I do not know if it was the front or the back. I saw he had bent the child, a girl. ‘Alikuwa amemuinamisha, akiwa nyuma yake na kumtia mboro.’ I saw him thrusting in and out of her.”
30. PW 3 Cpl Winnie Wambua, who confirmed that the incident was reported at Malindi Police Station on the same day, booked in the O.B and the victim referred to Malindi Sub-County hospital for examination and treatment.
31. PW4 Ibrahim Abdullahi examined the victim who was accompanied by her mother, on 2 October 2020. The medical examination revealed that the accused was anxious and emotional, her hymen was broken, she had bruises on the labia minora, her vagina was inflamed, she had bruises on the anal orifice and was found with spermatozoa. Her underwear was also torn . The medical officer concluded that there was evidence of vaginal penetration and anal penetration. To support the findings, the medical examination report dated 2 nd October 2020 and signed on 5 th October 2020, post rape care form dated 2 nd October 2020, lab test requests and results and treatment notes were produced as evidence.
32. On Appeal, the appellant argued that the evidence of PW1 should be excluded for offending Section 19 (1) of the Oaths and Statutory Declarations Act due to failure by the trial court in conducting Voire Dire prior to accepting her testimony on oath on grounds that she was a child of tender age.
33. Under the Children Act , a child is legally defined as any individual below the age of 18. There is no statutory definition of the term "tender years". The term “tender years” has been judicially interpreted to mean a child below 14 years.
34. The court in George Kioko Nzioka V Republic [2020] eKLR , while being guided by the case of Maripett Loonkomok V Republic [2016] eKLR where in Maripett reviewed cases going back to Kibageny Arap Kolil V Republic [1959] EA 82 held that:
“There is no definition in the Oaths and Statutory Declaration Ordinance of the expression ‘child of tender years’ for the purpose of Section 19. But we take it to mean, in the absence of special circumstances, any child of any age, or apparent age, of under fourteen years .”
35. Similarly in the case of MK Versus Republic [2015] eKLR , the Court termed as unnecessary voir dire examination conducted on a child aged 15 years by the trial court. It was held that voir dire examination is done where a child witness is a child of tender years. The Court of Appeal concluded by saying that a child of tender years is one who is fourteen (14) years and below.
36. The complainant testified that she was born on 18 February 2021 and therefore she was 15 years and 9 months old at the time of testifying. This court finds that the complainant was not a child of tender years and did not require voir dire examination prior to testifying. The court finds that there was penetration.
Proof of age of the victim
37. The age of the victim is a critical ingredient of the Offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years. The High Court in Kamau V Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) 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.”
38. 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 V Republic, Criminal Appeal No. 21 Of 2015 [2017]. In this case, the birth certificate of the complainant produced as Exhibit 1 shows that the complainant, E.N.T was born on 14 May 2005. The offence is said to have been committed on 2 nd October 2020 which therefore means that the she was 15 years and 4 months at the time of commission of the offence and hence a child within the meaning of the Sexual Offences Act. T he court finds that this element of the offence was proved beyond any reasonable doubt.
Positive identification of the perpetrator
39. On the issue of identification, PW1 clearly identified the Aappellant in court as responsible for the offence. The offence occurred at about noon with good visibility. Her testimony was corroborated by PW2 who testified, “ I went to slowly to the house. On reaching, I found Mahenzo ‘akibaka mtoto mdogo’ Alikuwa akimfira. I do not know if it was the front or the back. I saw he had bent the child, a girl. ‘Alikuwa amemuinamisha, akiwa nyuma yake na kumtia mboro.’ I saw him thrusting in and out of her . I asked him what he was doing and why he did such an act. He said he was disciplining her.”
40. PW2 found the appellant on the scene and even engaged him in a conversation as confirmed by the appellant. The court is satisfied that the appellant was properly recognized by PW1 and PW2 as the perpetrator and finds that he was properly identified.
41. The Appellant argued that the trial court did not consider his defence. On this point, the trial court in its judgment at stated
“On issue 2, the accused did place himself at the scene, he also averred having talked to PW1 but made no mention of the incident save that he did not do it. He also never mentioned there being another person and did not discredit any of Sammy (PW2) eye witness -evidence. Consequently, I find that it was a mis-attempt by the accused to absolve himself from the offence noting that he gave unsworn testimony which has been stated to lack probative value.”
42. It is apparent that the trial court did indeed consider the appellant’s evidence but found it unconvincing. Upon independent evaluation, this court finds that the defence by the appellant did not cast any doubt on the prosecution’s case, was largely a denial and insufficient to form the basis for an acquittal.
43. On the whole, and upon this Court’s independent evaluation of the evidence adduced in support of the charge, the court is satisfied that the prosecution proved its case to the required degree and the conviction was safe.
Cross Appeal
44. The Respondent filed a Cross Appeal that sought variation of the sentence from 18 years to 20 years. Despite notice, the appellant did not file any submissions on the cross appeal.
45. The court has considered it and notes that the Appellant was convicted and sentence to 18 years imprisonment for the offence of defilement contrary to Section 8 (1) and (3) of the Sexual Offences Act. Section 8 (3) of the said Act sets the minimum mandatory period of imprisonment to be 20 years. Evidence shows the complainant was 15 years at the time of commission of the offence.
46. The Supreme Court in Republic Vs Joshua Gichuki Mwangi (2024) JELR112261 (SC) held that the Minimum Sentences set out in Section 8 of the Sexual Offences Act are lawful. The Sentencing Policy Guidelines state that where the law provides mandatory minimum sentences, the court is bound by those provisions and must not impose a sentence lower than what is prescribed. It is thus apparent that the sentence imposed by the trial court is below the minimum sentence set out by law making it unlawful.
47. Section 354 (3) of the Criminal Procedure Code empowers the High Court to vary any sentence on appeal. The court has considered the appellant mitigation, Pre-Sentence Report dated 5 January 2023 and the facts of the case. The appellant threatened the victim with violence during the commission of the offence as well as defiled her both in the vagina and anus.
48. The medical report indicated that the victim was anxious and emotional while the Pre-Sentence Report indicated that the offence has negatively impacted the victim’s physical, emotional and psychological well-being. Her academics were adversely affected as she was forced to repeat form 3. The offence has resulted in permanent harm to the victim who will bear it for the rest of her life. These are aggravating circumstances.
49. In light of the above, the court makes the following orders: -
a) The appeal against conviction has no merit and is accordingly dismissed.
b) The Cross Appeal is allowed and the sentence of 18 years imprisonment is quashed and substituted with a sentence of 20 years imprisonment.
c) The sentence shall run from the date of conviction.
50. It is so ordered.
Dated, Signed and Delivered Virtually at Nairobi on this 18 th day of June 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Criminal Appeal No. E146 of 20242
IN THE HIGH COURT OF KENYA AT MALINDI
CRIMINAL APPEAL NO. E146 OF 2024
KATANA MAHENZO …….………………………………….............................................…………….. APPELLANT
VERSUS
REPUBLIC ………………………………………………….....................................…………………. RESPONDENT
(Being an appeal against the conviction and sentence by Hon. ONALO J.K OLGA (SRM) in Malindi CM (SO) Case No. E027 of 2020)
JUDGEMENT
1. The appellant herein, Katana Mahenzo, was convicted on 24 November 2023 by the Chief Magistrate’s Court, Malindi 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 and sentenced to 18 years imprisonment. Aggrieved, he filed the present appeal challenging both conviction and sentence.
2. The particulars of the offence are that on the 2 nd day of October 2020 at Thalatha meli area in Malindi Sub- County within Kilifi County, intentionally caused his penis to penetrate into the vagina of E.N.T a girl aged 15 years. The appellant faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act, with particulars stating that on the 2 nd day of October 2020 at Thalatha meli area in Malindi Sub- County within Kilifi County, intentionally committed an indecent act by touching the vagina of E.N.T a girl aged 15 years by using his penis.
3. The appellant denied the charges prompting the trial where the prosecution called four (4) witnesses. PW1, E.N.T the complainant testified that she was born on 14 May 2005 hence 15 years old and a form 1 pupil at the material time. She produced a birth certificate (exhibit 1) as evidence. It was her evidence that on 2 October 2020 at about noon, she was playing in an unfinished building at Talatha road with a friend (name withheld) when the appellant appeared and accused them of playing in his house. He held the complainant by hand and pulled her inside one of the rooms. On seeing this, her friend ran away.
4. The appellant harassed her and asked her to remove her clothes. While she was in the process on removing her short, he removed her underwear by force and it tore. The appellant then told her to hold the wall with both hands and inserted his pennis in her vagina and anus. She further stated that he threatened to kill her if she screamed and she complied. After sometime, she managed to scream which attracted PW2 who went to the scene and found the appellant defiling the complainant.
5. PW2, testified that on 2 October 2020 he while working, he heard some noises from an unfinished building nearby and went to inquire. On reached there he went inside one of the rooms where he found the appellant standing behind the complainant defiling her. Upon inquiring the appellnat said he was punishing her. He intervened and asked the complainant to report the incident to her father.
6. The incident was reported to PW 3 Cpl Winnie Wambua at Malindi Police Station on the same day by the complainant who was accompanied by her mother and they were referred to hospital. PW4 testified that the complainant went to Malindi Sub- County hospital where she was examined. The medical examination revealed that she was anxious and emotional, her hymen was broken, she had bruises on the labia minora, her vagina was inflamed, she had bruises on the anal orifice and was found with spermatozoa. Her underwear was also torn. The medical officer concluded that there was evidence of vaginal penetration and anal penetration.
7. Put on his defence, the appellant elected to give unsworn evidence. He denied committing the offence but claimed that he found the complainant and another boy at the scene. It was his evidence that he called PW2 who was his neighbor and told him to ask the two what they were doing. Thereafter, he left the scene, went home only to be arrested later and charged with the defilement.
8. The trial court rendered judgment on 24 November 2023 where it found the appellant guilty of defilement as charged and sentenced him to 18 years imprisonment.
9. Aggrieved, the appellant filed the present appeal where he raised three (3) grounds of appeal:
i. The trial court erred in both law and fact by failing to subject E.N.T who was a person of tender age, to Voire Dire prior to testifying as required by law in contravention of Section 19 (1) of the Oaths and Statutory Declarations Act.
ii. The trial court erred in both law and fact by failing to consider the sharp contradictions, inconsistencies and invariances in the prosecution’s case.
iii. The trial court erred in both law and fact not considering the accused defence.
10. At the hearing of the appeal, the appellant elected to rely on his written submissions in which he argued all the grounds globally but independently . He contended that PW1 was below 18 years and a child of tender years who should have been subjected to Voire Dire prior to testifying in order to determine if she understood the nature of oaths. He made reference to the case of R vs Patrick Kathurima (Nyeri) CRA 137 Of 2014 to support his assertions.
11. On the second ground, he argued that PW1, PW2, PW3 and PW4 were not consistent witnesses and should not have been relied by the trial court. He submitted that their evidence was fabricated, contradictory, un-corroborated and hence unsafe to form the basis for the conviction and sentence. He relied on the cases of Dener Kishan Pandya Vs R. App No. 106 of 1950 EACA 93 and Kazungu Mramba Mweni vs R. CA 220 of 2007 to affirm his argument that where evidence is contradictory, the contradictions affect the credibility of the entire prosecution case.
12. On the third ground, he submitted that the trial court failed to consider his evidence which created doubt that should have been applied in his favour. He faulted the court for relying on the prosecution evidence to convict him without weighing it against his evidence. He cited the case of Ozaki & Another vs the State where the court held that the defence of Alibi by an accused person is to be proved on a balance of probabilities and that for it to be rejected, it must be weighed against the evidence offered by the prosecution. He argued that the prosecution did not prove the allegations against him beyond reasonable doubt and urged the court to allow the appeal and set aside the conviction and sentence.
13. The Respondent opposed the appeal and filed written submissions which they relied on. They also filed and served upon the appellant a Notice of Cross Appeal dated 30 th April 2026 where they contended that the sentence of 18 years imprisonment ought to be reversed or varied to 20 years or to the extent and manner provided for by the law.
14. The Respondent submitted that this being the first appellate court, the court has a duty to revisit the evidence tendered before the trial court, re-evaluate it, analyze it and come to its own independent conclusion on the matter bearing in mind that it did not have an advantage of hearing or observing the demeanor the witnesses. They relied on the case of Okemo Vs R (1977) EALR 32 and the Court of Appeal case of Mark Oiruri Moses Vs R (2013) eKLR to buttress their argument.
15. The Respondent maintained that the trial court adhered to the provisions of Section 110 and 111 of the Evidence Act , Cap 80 throughout the trial and urged the court to dismiss the allegations that these sections were violated. On the allegations of contradictions in the evidence against the appellant, it was submitted that the evidence adduced against the Appellant was cogent, consistent and corroborated.
16. The Respondent further contended that the appellant did not bring out any contradictions during cross -examination or in the evidence adduced in his defence and that all requisite elements constituting the offence of defilement were proved beyond reasonable doubt. On this point, the Respondent relied on the Court of Appeal decision in case of Richard Munene Vs R (2018) eKLR where the court stated regarding contradictions or inconsistency in the evidence of the prosecution witnesses:
“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law, however, that it is not every flirting contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that the accused person will be entitled to benefit from it.”
17. On the allegation that the prosecution did not prove the case beyond reasonable doubt, it was submitted for the Respondent that the three (3) ingredients that constitute the offence of defilement under Section 8 (1) of the Sexual Offences Act, being the victim’s age, penetration and identity of the perpetrator were all proved beyond reasonable doubt. Reliance was placed in the cases of George Opondo Olunga Vs R (2016) eKLR , Daisy Chepkoech Vs R (2022) eKLR , Francis Omuroni Vs Uganda, Court of Appeal Criminal Case No. 2 of 2000 and R Vs Turnbull & Others (1976) 3 All ER 549 to support this assertion.
18. The Respondent contended that the trial court duly considered and analyzed the defence by the Appellant in determining the case contrary to the submissions by the Appellant. Reference was made to Page 44 and 46 of the Record of Appeal to show that indeed the Appellant’s evidence which was based on his unsworn testimony was indeed considered but found to lack any probative value. Reliance was placed in the case of May Vs R, C.A Criminal Appeal No. 24 Of 1979 (1981) KLR 129 to support the assertion that the Appellant’s unsworn statement had no probative value. The Respondent concluded that the appeal lacked merit and urged the court to dismiss it, while allowing the cross appeal.
Analysis and determination
19. 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. 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.”
20. With that in mind, the court will proceed to determine the appeal. 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. ”
21. 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. In the case of Charles Wamukoya Karani V Republic , Criminal Appeal No. 72 Of 2013 the court stated; “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
22. Similarly, in George Opondo Olunga Vs R (2016) eKLR , the court of appeal held that the offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and proper identification of the perpetrator. These ingredients are provided for under section 8 (1) of the Sexual Offences Act and must be proven for a conviction to issue.
23. Drawing from the above, the issues for determination in this appeal are as follows: -
a) Whether there was penetration.
b) Age of the victim.
c) Positive identification of the perpetrator.
24. In determining this appeal, the court has analysed the facts of the case, examined and re-evaluated the evidence on record, the grounds of appeal filed by the appellant, written submissions in support thereof, written submissions by the respondent, the merit of the cross-appeal and relevant case law on the subject.
Proof of penetration
25. 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 .
26. “Genital organs” is defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the genital organs of the Appellant into the genital organs of the victim, E.N.T.
27. The evidence on record is that on 2 nd October 2020 at about noon E.N.T, the victim aged 15 years and a form 1 student in a local school was playing with her friend (name withheld) in an unfinished building at Talatha road when the appellant appeared and accused them of playing in his house. He held the complainant by hand and pulled her inside one of the rooms. On seeing this, her friend ran away.
28. The appellant harassed her and asked her to remove her clothes which she described as Kipande (short), leso tied around it and a shirt that she had worn. While she was in the process on removing her short, he removed her underwear by force and it tore. The Appellant then told her to hold the wall with both hands and inserted his pennis in her vagina and anus. She testified that he threatened to kill her if she screamed and she complied. She stated that after sometime, she managed to scream which attracted PW2 Sammy Ngare who went to the scene and found the appellant defiling the complainant.
29. PW2, testified; “I went to slowly to the house. On reaching, I found Mahenzo ‘akibaka mtoto mdogo’ Alikuwa akimfira. I do not know if it was the front or the back. I saw he had bent the child, a girl. ‘Alikuwa amemuinamisha, akiwa nyuma yake na kumtia mboro.’ I saw him thrusting in and out of her.”
30. PW 3 Cpl Winnie Wambua, who confirmed that the incident was reported at Malindi Police Station on the same day, booked in the O.B and the victim referred to Malindi Sub-County hospital for examination and treatment.
31. PW4 Ibrahim Abdullahi examined the victim who was accompanied by her mother, on 2 October 2020. The medical examination revealed that the accused was anxious and emotional, her hymen was broken, she had bruises on the labia minora, her vagina was inflamed, she had bruises on the anal orifice and was found with spermatozoa. Her underwear was also torn . The medical officer concluded that there was evidence of vaginal penetration and anal penetration. To support the findings, the medical examination report dated 2 nd October 2020 and signed on 5 th October 2020, post rape care form dated 2 nd October 2020, lab test requests and results and treatment notes were produced as evidence.
32. On Appeal, the appellant argued that the evidence of PW1 should be excluded for offending Section 19 (1) of the Oaths and Statutory Declarations Act due to failure by the trial court in conducting Voire Dire prior to accepting her testimony on oath on grounds that she was a child of tender age.
33. Under the Children Act , a child is legally defined as any individual below the age of 18. There is no statutory definition of the term "tender years". The term “tender years” has been judicially interpreted to mean a child below 14 years.
34. The court in George Kioko Nzioka V Republic [2020] eKLR , while being guided by the case of Maripett Loonkomok V Republic [2016] eKLR where in Maripett reviewed cases going back to Kibageny Arap Kolil V Republic [1959] EA 82 held that:
“There is no definition in the Oaths and Statutory Declaration Ordinance of the expression ‘child of tender years’ for the purpose of Section 19. But we take it to mean, in the absence of special circumstances, any child of any age, or apparent age, of under fourteen years .”
35. Similarly in the case of MK Versus Republic [2015] eKLR , the Court termed as unnecessary voir dire examination conducted on a child aged 15 years by the trial court. It was held that voir dire examination is done where a child witness is a child of tender years. The Court of Appeal concluded by saying that a child of tender years is one who is fourteen (14) years and below.
36. The complainant testified that she was born on 18 February 2021 and therefore she was 15 years and 9 months old at the time of testifying. This court finds that the complainant was not a child of tender years and did not require voir dire examination prior to testifying. The court finds that there was penetration.
Proof of age of the victim
37. The age of the victim is a critical ingredient of the Offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years. The High Court in Kamau V Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) 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.”
38. 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 V Republic, Criminal Appeal No. 21 Of 2015 [2017]. In this case, the birth certificate of the complainant produced as Exhibit 1 shows that the complainant, E.N.T was born on 14 May 2005. The offence is said to have been committed on 2 nd October 2020 which therefore means that the she was 15 years and 4 months at the time of commission of the offence and hence a child within the meaning of the Sexual Offences Act. T he court finds that this element of the offence was proved beyond any reasonable doubt.
Positive identification of the perpetrator
39. On the issue of identification, PW1 clearly identified the Aappellant in court as responsible for the offence. The offence occurred at about noon with good visibility. Her testimony was corroborated by PW2 who testified, “ I went to slowly to the house. On reaching, I found Mahenzo ‘akibaka mtoto mdogo’ Alikuwa akimfira. I do not know if it was the front or the back. I saw he had bent the child, a girl. ‘Alikuwa amemuinamisha, akiwa nyuma yake na kumtia mboro.’ I saw him thrusting in and out of her . I asked him what he was doing and why he did such an act. He said he was disciplining her.”
40. PW2 found the appellant on the scene and even engaged him in a conversation as confirmed by the appellant. The court is satisfied that the appellant was properly recognized by PW1 and PW2 as the perpetrator and finds that he was properly identified.
41. The Appellant argued that the trial court did not consider his defence. On this point, the trial court in its judgment at stated
“On issue 2, the accused did place himself at the scene, he also averred having talked to PW1 but made no mention of the incident save that he did not do it. He also never mentioned there being another person and did not discredit any of Sammy (PW2) eye witness -evidence. Consequently, I find that it was a mis-attempt by the accused to absolve himself from the offence noting that he gave unsworn testimony which has been stated to lack probative value.”
42. It is apparent that the trial court did indeed consider the appellant’s evidence but found it unconvincing. Upon independent evaluation, this court finds that the defence by the appellant did not cast any doubt on the prosecution’s case, was largely a denial and insufficient to form the basis for an acquittal.
43. On the whole, and upon this Court’s independent evaluation of the evidence adduced in support of the charge, the court is satisfied that the prosecution proved its case to the required degree and the conviction was safe.
Cross Appeal
44. The Respondent filed a Cross Appeal that sought variation of the sentence from 18 years to 20 years. Despite notice, the appellant did not file any submissions on the cross appeal.
45. The court has considered it and notes that the Appellant was convicted and sentence to 18 years imprisonment for the offence of defilement contrary to Section 8 (1) and (3) of the Sexual Offences Act. Section 8 (3) of the said Act sets the minimum mandatory period of imprisonment to be 20 years. Evidence shows the complainant was 15 years at the time of commission of the offence.
46. The Supreme Court in Republic Vs Joshua Gichuki Mwangi (2024) JELR112261 (SC) held that the Minimum Sentences set out in Section 8 of the Sexual Offences Act are lawful. The Sentencing Policy Guidelines state that where the law provides mandatory minimum sentences, the court is bound by those provisions and must not impose a sentence lower than what is prescribed. It is thus apparent that the sentence imposed by the trial court is below the minimum sentence set out by law making it unlawful.
47. Section 354 (3) of the Criminal Procedure Code empowers the High Court to vary any sentence on appeal. The court has considered the appellant mitigation, Pre-Sentence Report dated 5 January 2023 and the facts of the case. The appellant threatened the victim with violence during the commission of the offence as well as defiled her both in the vagina and anus.
48. The medical report indicated that the victim was anxious and emotional while the Pre-Sentence Report indicated that the offence has negatively impacted the victim’s physical, emotional and psychological well-being. Her academics were adversely affected as she was forced to repeat form 3. The offence has resulted in permanent harm to the victim who will bear it for the rest of her life. These are aggravating circumstances.
49. In light of the above, the court makes the following orders: -
a) The appeal against conviction has no merit and is accordingly dismissed.
b) The Cross Appeal is allowed and the sentence of 18 years imprisonment is quashed and substituted with a sentence of 20 years imprisonment.
c) The sentence shall run from the date of conviction.
50. It is so ordered.
Dated, Signed and Delivered Virtually at Nairobi on this 18 th day of June 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Criminal Appeal No. E146 of 20242