(Being an appeal against the conviction and sentence by Hon. G Mokua (RM) in Kaloleni PM Court (SO) Case No. E030 of 2023)
1. The appellant herein, Kombo Juma Karisa was charged before the Principal Magistrate’s Court, Kaloleni with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on diverse dates between the months of May 2023 and 4 October 2023 at Kibonjoni village, Kaloleni location, Kaloleni Sub-County in Kilifi County within the coast region intentionally and unlawfully committed an act which caused his male genital organ namely penis to penetrate the female genital organ namely the vagina of S.K J a child aged 16 years.
2. He was also charged with an alternative offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on diverse dates between the months of May 2023 and 4 October 2023 at Kibonjoni village, Kaloleni location, Kaloleni Sub-County in Kilifi County within the coast region intentionally and unlawfully committed an act which caused his male genital organ namely penis to touch the female genital organ namely the vagina of S.K J a child aged 16 years.
3. He denied the charges prompting the trial in which the prosecution to called six (6) witnesses. PW1, the complainant, SKJ testified that she was aged 16 years old and was a Form1 student a Makomboani High School though she was not in school due to lack of school fees. She stated that she knew the appellant who was her husband even though they had not done any marriage ceremony. She testified that she first met the appellant in May 2023 when she accompanied her friend Salama to a salon which was located next to a kinyozi where the appellant worked. The appellant introduced himself and after sometime, they agreed to be lovers. She told him that she was still in school.
4. It was her testimony that in June 2023, she went to Mwabayanyundo, met the appellant at his friend’s house where they had sexual intercourse after which she went back home. She went on to say that she had had sex with the appellant on several occasions, and became pregnant. At one time, she met the appellant at his grandmother’s home during a funeral where his mother and grandmother also there. The appellant bought her some drugs which she took. She then stayed there. While still there, the appellant’s father came, called her and told her that he wanted to meet her parents. She averred that she was staying with the appellant in his house as his wife where she showed him her birth certificate when he asked about her age.
5. She further testified that in September 2023, the appellant informed her that her mother would be passing by and that they met her. They later went to the appellant’s uncle who told the appellant to look for a goat. The appellant went to look for the goat and left her in his home. S he later visited his aunt who insulted her and told her that she would be arrested.
6. PW 1 was subsequently arrested by police at the appellants’ house and taken to Kaloleni police station where her mother, PW2 was called. She was referred to Mariakani Sub-County hospital for examination and tests which established that she was 15 weeks pregnant. On their way back to the police station, the appellant called the complainant’s mother who asked him to meet them at Kaloleni police station which he agreed. He was thereafter taken into custody at the police station.
7. PW2 the complainant’s mother, stated that the complainant was born on 25 November 2006 and was 16 years old. She produced her birth certificate as exhibit 1 and stated that she was a Form 1 student at Makomoboani High School. She testified that in May 2023, while she was working Saudi Arabia, she was called by Miriam who told her that the complainant who had been sent home due to lack of school fees was missing. She was later informed by her father that complainant was at her grandmother’s house. Three days later, Miriam called her again and informed her that the complainant had not returned home.
8. She flew back to Kenya on 25 August 2023 and reported to the village elder, assistant chief and police that the complainant was missing. She inquired where the complainant was and asked PW3 to look for her. PW3 who was the appellant’s friend, went to the appellant’s house where he found the complainant, came back and reported to PW2. PW3 reported to the police who later went to the appellant’s house where they found the complainant, took her to the Police station and referred her to Mariakani Sub County Hospital where medical examinations established that she was pregnant. That the appellant was subsequently and charged.
9. PW3 testified that he works as a mechanic at Bombolulu-Kaloleni, is a niece to the complainant and a friend to the appellant. In September 2023, PW2 called him and informed him that the complainant was missing. A week later, she informed him that the complainant was at the appellant’s house. He then went to the appellant’s home where he found the complainant washing utensils, though the appellant was not present. He also found the appellant’s mother and other children but did not disclose the purpose of his visit. He informed PW2 and accompanied her to the village elder on 3 September 2023 to report them matter and later to the police.
10. PW4 a clinical officer at Mariakani Sub-County Hospital testified that the complainant, a 16 years old girl, was presented to the hospital on allegations of having been defiled by a person known to her. On examination, it was established that she was around 15 weeks preganant, her genitalia were normal, her hymen was missing, her vagina muscles were loose and discharge was noted. He produced the P3 Form, Treatment notes, Gender Based Violence Form, Obstetric Scan and lab request form as evidence thereof. He concluded that the expected date of delivery was 25 March 2024. He concluded that she was defiled leading to pregnancy.
11. PW5 testified that he was the appellant’s father. In July 2023 while he was in Mtwapa, he was called by Mariam and informed that the complainant who had been sent home from school due to lack of school fees was not at her grandmother’s home and is missing. Upon inquiry, the complainant was located and the police informed. That she was found at the appellant’s homestead but the appellant was not in. He confirmed that the appellant was pregnant after she was located but did not know who was responsible.
12. PW6 testified that he was the investigating officer attached at Kaloleni Police Station. On 3 October 2023, PW2 reported that her daughter, PW1 was missing but she had been informed that she was married at Kibosoni. He accompanied by PW2 went to the homestead but found all doors locked. Neighbors informed them that the occupants disappeared after getting wind that police were going. On 4 October 2023 at 5am they went back and found PW1 alone in the appellant’s and they took her to the station. He accompanied PW1 to Mariakani Sub-County Hospital where examination confirmed that she was defiled and 115 weeks pregnant. The appellant called PW2 while they were at the hospital. She told him to meet them at the police station which he agreed. The appellant was arrested at the police station when he went to meet PW2.
13. He testified that his investigations revealed that the appellant met PW1 at the barbershop (kinyozi) where he seduced her into a relationship leading to marriage. In June 2023, the appellant had sex with the PW1 at Mwabayanyundo. A week later PW1 discovered that she was pregnant. On 11 August 2023, the appellant and PW1 met at a wedding, had sexual intercourse and that is when PW1 informed him that she was pregnant. That the two started living together as husband and wife the following day at the appellant’s home until 4 October 2023 when PW1 was rescued.
14. At the close of the prosecution’s case, the trial court found that the appellant had a case to answer and placed him on his defence. The appellant testified on oath that on 25 August 2023 he met PW1 at a wedding in Kafuani. That PW1was in trouble and upon inquiry, she told him that she was pregnant and that Baraka was responsible but he had denied responsibility. That they met against on 26 August 2023 at a funeral where he greeted her and left. On 30 August 2023, PW 1 again met him at the barbershop and sought advise from him and he told her to go and meet his parents.
15. He went on to state that on 1 September 2023, PW1 went to his home, met his mother, informed her that she was out of school and was staying with her grandmother since her mother was in Saudi Arabia and requested to live with his (the appellant’s) family. That his father went home after one week and followed up with the complainant’s parents.
16. On 4 October 2023, PW2 told him to meet her at the police station and that he was arrested and charged on 5 October 2023. He further testified that PW1 was picked from his home on 3 October 2023 while he was away. In cross examination he stated that PW1 told him that she was pregnant on 25 August 2023 and that he did not inform her relatives, police or her teachers at school but only reported to chief Thaoya and a village elder. He further testified that he told PW1 to go to him home and that she lived there for one month.
17. At the conclusion of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, convicted him and sentencing him to 10 years imprisonment. Aggrieved, the appellant filed the present appeal where he raised the following grounds:
i. The trial court erred in both law and fact by failing to find that his constitutional right to fair trial were infringed.
ii. The trial court erred in both law and fact by failing to consider the discrepancies and inconsistencies in the prosecution evidence.
iii. The trial court erred in both fact and law by failing to find that the prosecution did not prove its case beyond reasonable doubt as required by law.
iv. The trial court erred in both law and fact by imposing a sentence without considering the principles, objectives and current jurisprudence on sentencing.
v. The trial court erred in both law and fact by failing to consider the appellant’s defence.
18. At the hearing of the appeal, both parties relied on their written submissions. The appellant submitted that the prosecution’s case was full of contradictions and discrepancies that made the conviction unsafe. while the Respondent relied on the record. He submitted that the evidence of PW1 was full of inconsistencies and pointed out the statements he considered differed with his testimony given in defence.
19. The appellant further submitted that the burden of proving a pregnancy was occasioned by defilement was upon the complainant, PW1. He argued that PW1 was young, naïve and had been pressured by her mother, PW2 to implicate the appellant. He cited the case of Maina vs R (1970) to support his case.
20. On the ingredient of age, he submitted that the same was not proved. He challenged the authenticity of the birth certificate (exhibit 1) on grounds that it was registered on 4 October 2022 while it stated that she was born on 25 November 2006. He questioned why it took PW2 16 years to get the birth certificate and argued that this raised doubts as to its authenticity. He further submitted that he was not supplied with the birth certificate prior to its production which violated his right to fair trial under Article 50 (2) (b) and (c) of the Constitution. He cited the case of Edwin Nyambogo Onsongo vs R (2016) eKLR to support his case. He urged the court to find in his favour, allow the appeal and set aside the conviction and finding.
21. The respondent in its written submissions opposed the appeal and averred that the appellant was accorded a fair trial as enshrined in Article 50 of the Constitution . It was further argued for the Respondent that the prosecution adduced cogent evidence that was consistent, corroborated to prove all ingredients of the offence to the required standards. That this evidence was not controverted by the defence.
22. On the sentence, the Respondent submitted that while it is clear that the trial court considered the appellant’s mitigation and the Sentencing Guidelines in sentencing the appellant to 10 years imprisonment, the offence under Section 8 (4) of the Sexual Offences Act carries a minimum mandatory punishment of 15 years and that the sentence of 10 years is unlawful in view of the law. He urged this court to set aside the sentence of 10 years and substitute it with the minimum mandatory sentence of 15 years as provided by law. He cited Supreme Court of Kenya Petition No. E018 of 2023, R vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR) to support its argument.
Analysis and determination
23. This being the first appeal, the court has a duty to re-evaluate 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. See Okeno Vs Republic [1972] EA 32 and Oiruri Mose Vs R (2013) eKLR.
24. The Court of Appeal, in Kiilu & Another Vs 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.”
25. 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 (4) 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.
(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 of not less than fifteen years.”
26. 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 Vs Republic , Criminal Appeal No. 72 of 2013.
27. 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.
28. Drawing from the above, the issues for determination are as follows: -
i. Whether the appellant’s constitutional right to fair trial under Article 50 (2) (c ) and (d) was violated
ii. Whether there was proof of penetration.
iii. Whether there was proof of age of the victim.
iv. Whether there was proof of positive identification of the perpetrator.
v. Whether the sentence was illegal and unlawful.
Whether the appellant’s constitutional rights to fair trial under Article 50 (2) (c) and (j) were violated
29. The appellant submitted that he was not supplied with the appellant’s birth certificate produced by PW2 prior to the trial in violation of Article 50 (2) (b) and (c) of the Constitution . He urged the court to disregard that piece of evidence.
30. Article 50 of the Constitution guarantees fair hearing and cannot be limited by dint of Article 25 of the Constitution . Violation of Article 50 (2) of the Constitution would lead a higher court to quash a conviction, invalidate proceedings, or exclude tainted evidence . If the breach is severe enough to compromise the entire trial process, it will result in an acquittal or, in limited cases, an order for a retrial. See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR).
31. Article 50 (2) (b) and (c) of the Constitution provides;
“ 50 (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right: -
(a) ……………………………………….
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;”
32. The court has examined the record of proceedings before the trial court and it shows that the appellant was supplied with charge sheet, statements and evidence by the prosecution on 5 October 2023 which he acknowledged. This was way before the trial commenced. He also had an opportunity on challenging its production (birth certificate) on grounds that he had not been supplied with it but he didn’t. The court finds no evidence to support the allegation of violation of constitutional rights.
Whether there was proof of penetration
33. 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 .
34. “Genital organs” are 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 appellant’s penis in the vagina of the victim, SKJ.
35. The court has examined and analyzed the evidence on record on this issue. PW1’s evidence was that in May 2023, she was sent home from school due to lack of school fees. During this period, she met the appellant at a kinyozi (barbershop) which was next to a salon that he had accompanied her friend Salama to. That the appellant pursued her through Salama’s phone until they met in his kinyozi when he told her that he loved her and they agreed to be lovers. She went on to state that in June 2023, she had sex with the appellant at his friend’s house at Mwabayanyundo. She testified that she realized that she was pregnant out of the intercourse sometimes later after she became sick and went to hospital for treatment. She testified that she had sex with the appellant on several occasions and were living together as husband and wife. She introduced the appellant as her husband.
36. Her evidence was corroborated by PW4, a clinical officer who examined PW1 at Mariakani Sub-County Hospital on 4 October 2023 after it was reported that she had been defiled by a known person. From the medical examination, it was established that her genitalia were normal, her hymen was missing, her vagina muscles were loose, she had discharge in her vagina and that she was 15 weeks and 2 days pregnant. He adduced the P3 form (exhibit 2), Treatment Notes (exhibit 3), Gender Based Violence Form (exhibit 4), obstetric scan (exhibit 5) and Lab request form (exhibit 6) as evidence thereof. Deducing from the above, its clear that the pregnancy occurred in the month of June 2023.
37. The court finds that there is overwhelming evidence to corroborate that of PW1 on the issue of penetration. PW2’s evidence that PW1 was found in the appellant’s house washing dishes was corroborated by PW3’s evidence who found PW1 at the appellant’s home when he visited. It is clear that PW1 and the appellant were living together as confirmed by PW1, PW2, PW3 and PW6 evidence which shows that PW1 was found at the appellant’s home on 4 October 2023.
38. PW1 clearly described that she met the appellant in June 2023 where they had sex at his friend’s house and that they have had sex on several other occasions. This was not controverted at all by the appellant. The court has considered the totality of the evidence and is satisfied beyond reasonable doubt that the appellant penetrated the PW1 in June 2023 while they had sex in Mwabayanyundo and on several other occasions between June and 4 th October 2023. The court finds that this ingredient was proved beyond reasonable doubt.
Proof of age of the victim
39. The age of the victim is a critical ingredient and must be proved for the offence of defilement under Section 8 (1) of the Act to crystalize. See Kamau Vs Republic (Criminal Appeal E003 Of 2024 [2025] KEHC 42 (KLR).
40. Age can be proved 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].
41. PW1 testified that she was 16 years old. This was corroborated by PW2 who went on to was produce PW1’s birth certificate (exhibit 1) as evidence thereof. The said birth certificate shows that PW1 was born on 25 November 2006 hence 16 years in 2023. The appellant submitted that the birth certificate was issue 16 years after the birth of the complainant. There is no law that bars issuance of a birth certificate. Section 8 of the Births and Deaths Registration Act (CAP 149) empowers the principal registrar to issue a birth certificate at any time. The birth certificate was issued on 4 October 2022 which is almost 7 months before the commission of then offence. It cannot be imputed that it was prepared solely for the sake of the current case. The allegation is thus dismissed. The court finds that age of the victim was proved as required by law.
Proof of positive identification of the perpetrator.
42. Evidence on record is that PW1, the victim positively identified the appellant as responsible for the offence. She testified that she knew the appellant since May 2023 where they first met in the kinyozi and subsequent times thereafter which culminated in their sexual encounter in June 2023 and their living together. The appellant in defence admitted to have met PW1 on several occasions and that he invited her to their home to live there upon her request. PW3 who testified that he knew both PW1 and the appellant testified that he found PW1 in the appellant’s home when he went there to confirm if indeed, she was there. The court finds that this element was proved beyond reasonable doubt. The court, having re-valuated and re-examined the evidence adduced in the trial, finds that all ingredients of the offence of defilement were duly proved and upholds the conviction by the trial court.
Whether the sentence was illegal and unlawful
43. Turning on the sentence, the appellant submitted that it does not accord to the Sentencing Guidelines, current jurisprudence or taken into account his mitigation. The Respondent on the other hand sought enhancement in its submissions on grounds that the sentence of 10 years is below the mandatory minimum of 15 years as set by law.
44. Sentencing is an exercise of discretion by the trial court. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”
45. As stated earlier, section 8 (4) of the Sexual Offences Act sets a mandatory minimum sentence of 15 years imprisonment. The Supreme Court in Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi (Supra) affirmed that minimum mandatory sentences set out under Section 8 of the Sexual Offences Act are lawful, apply and must be respected. It is thus apparent that the sentence of 10 years awarded by the trial court is below the minimum of 15 years set out by Section 8 (4) of the act and thus unlawful.
46. Although Section 354(3) of the Criminal Procedure Code grants the High Court power to enhance or vary a sentence imposed by the trial court, that power must be exercised with caution, and where there is no appeal against sentence, the appellant must be given prior notice of the intention to enhance the sentence.
47. The Court of Appeal in Samwel Mbugua Kihwanga v Republic [2016] KECA 281 (KLR) observed as follows:
“…the obligation on an appellate court to fore- warn or caution an appellant before enhancing a sentence imposed against him by a trial court is not anchored on any law but in practice that has now gained such notoriety that it is proper that an appellant be warned of the consequences of proceeding with his appeal in circumstances where so proceeding may likely result in the sentence being enhanced to his disadvantage. It is simply to enable him weigh the options available and then make a decision that suits his best interests, especially in circumstances where, like in the instant appeal, an appellant is disadvantaged for not being schooled both in the law and legal procedures he may be confronted with during the course of the trial of his appeal.”
48. Drawing for the above, despite powers to vary granted under Section 354 (3) of the Criminal Procedure Code , a sentence can only be revised upwards on appeal by the State or upon prior notice of enhancement being to the appellant on the possibility of enhancement of sentence. See also Mwanzia vs R (2023) KECA 420 (KLR).
49. In this case, the Respondent did not issue a notice of enhancement of sentence or warned the appellant beforehand so as to enable him make an informed decision on whether or not he wished to proceed with the appeal or abandon it. Enhancing the sentence without notice as aforesaid would violate the appellants right to fair trial under Article 50 of the Constitution , thereby rendering the whole proceedings a nullity by dint of Article 2 (4).
50. The upshot is that the appeal lacks merit and is dismissed accordingly. The conviction and sentence by the trial court is upheld.
Dated, signed and delivered virtually at Nairobi on this 25 th day of June 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Criminal appeal No. E025 of 2025
1. The appellant herein, Kombo Juma Karisa was charged before the Principal Magistrate’s Court, Kaloleni with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on diverse dates between the months of May 2023 and 4 October 2023 at Kibonjoni village, Kaloleni location, Kaloleni Sub-County in Kilifi County within the coast region intentionally and unlawfully committed an act which caused his male genital organ namely penis to penetrate the female genital organ namely the vagina of S.K J a child aged 16 years.
2. He was also charged with an alternative offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on diverse dates between the months of May 2023 and 4 October 2023 at Kibonjoni village, Kaloleni location, Kaloleni Sub-County in Kilifi County within the coast region intentionally and unlawfully committed an act which caused his male genital organ namely penis to touch the female genital organ namely the vagina of S.K J a child aged 16 years.
3. He denied the charges prompting the trial in which the prosecution to called six (6) witnesses. PW1, the complainant, SKJ testified that she was aged 16 years old and was a Form1 student a Makomboani High School though she was not in school due to lack of school fees. She stated that she knew the appellant who was her husband even though they had not done any marriage ceremony. She testified that she first met the appellant in May 2023 when she accompanied her friend Salama to a salon which was located next to a kinyozi where the appellant worked. The appellant introduced himself and after sometime, they agreed to be lovers. She told him that she was still in school.
4. It was her testimony that in June 2023, she went to Mwabayanyundo, met the appellant at his friend’s house where they had sexual intercourse after which she went back home. She went on to say that she had had sex with the appellant on several occasions, and became pregnant. At one time, she met the appellant at his grandmother’s home during a funeral where his mother and grandmother also there. The appellant bought her some drugs which she took. She then stayed there. While still there, the appellant’s father came, called her and told her that he wanted to meet her parents. She averred that she was staying with the appellant in his house as his wife where she showed him her birth certificate when he asked about her age.
5. She further testified that in September 2023, the appellant informed her that her mother would be passing by and that they met her. They later went to the appellant’s uncle who told the appellant to look for a goat. The appellant went to look for the goat and left her in his home. S he later visited his aunt who insulted her and told her that she would be arrested.
6. PW 1 was subsequently arrested by police at the appellants’ house and taken to Kaloleni police station where her mother, PW2 was called. She was referred to Mariakani Sub-County hospital for examination and tests which established that she was 15 weeks pregnant. On their way back to the police station, the appellant called the complainant’s mother who asked him to meet them at Kaloleni police station which he agreed. He was thereafter taken into custody at the police station.
7. PW2 the complainant’s mother, stated that the complainant was born on 25 November 2006 and was 16 years old. She produced her birth certificate as exhibit 1 and stated that she was a Form 1 student at Makomoboani High School. She testified that in May 2023, while she was working Saudi Arabia, she was called by Miriam who told her that the complainant who had been sent home due to lack of school fees was missing. She was later informed by her father that complainant was at her grandmother’s house. Three days later, Miriam called her again and informed her that the complainant had not returned home.
8. She flew back to Kenya on 25 August 2023 and reported to the village elder, assistant chief and police that the complainant was missing. She inquired where the complainant was and asked PW3 to look for her. PW3 who was the appellant’s friend, went to the appellant’s house where he found the complainant, came back and reported to PW2. PW3 reported to the police who later went to the appellant’s house where they found the complainant, took her to the Police station and referred her to Mariakani Sub County Hospital where medical examinations established that she was pregnant. That the appellant was subsequently and charged.
9. PW3 testified that he works as a mechanic at Bombolulu-Kaloleni, is a niece to the complainant and a friend to the appellant. In September 2023, PW2 called him and informed him that the complainant was missing. A week later, she informed him that the complainant was at the appellant’s house. He then went to the appellant’s home where he found the complainant washing utensils, though the appellant was not present. He also found the appellant’s mother and other children but did not disclose the purpose of his visit. He informed PW2 and accompanied her to the village elder on 3 September 2023 to report them matter and later to the police.
10. PW4 a clinical officer at Mariakani Sub-County Hospital testified that the complainant, a 16 years old girl, was presented to the hospital on allegations of having been defiled by a person known to her. On examination, it was established that she was around 15 weeks preganant, her genitalia were normal, her hymen was missing, her vagina muscles were loose and discharge was noted. He produced the P3 Form, Treatment notes, Gender Based Violence Form, Obstetric Scan and lab request form as evidence thereof. He concluded that the expected date of delivery was 25 March 2024. He concluded that she was defiled leading to pregnancy.
11. PW5 testified that he was the appellant’s father. In July 2023 while he was in Mtwapa, he was called by Mariam and informed that the complainant who had been sent home from school due to lack of school fees was not at her grandmother’s home and is missing. Upon inquiry, the complainant was located and the police informed. That she was found at the appellant’s homestead but the appellant was not in. He confirmed that the appellant was pregnant after she was located but did not know who was responsible.
12. PW6 testified that he was the investigating officer attached at Kaloleni Police Station. On 3 October 2023, PW2 reported that her daughter, PW1 was missing but she had been informed that she was married at Kibosoni. He accompanied by PW2 went to the homestead but found all doors locked. Neighbors informed them that the occupants disappeared after getting wind that police were going. On 4 October 2023 at 5am they went back and found PW1 alone in the appellant’s and they took her to the station. He accompanied PW1 to Mariakani Sub-County Hospital where examination confirmed that she was defiled and 115 weeks pregnant. The appellant called PW2 while they were at the hospital. She told him to meet them at the police station which he agreed. The appellant was arrested at the police station when he went to meet PW2.
13. He testified that his investigations revealed that the appellant met PW1 at the barbershop (kinyozi) where he seduced her into a relationship leading to marriage. In June 2023, the appellant had sex with the PW1 at Mwabayanyundo. A week later PW1 discovered that she was pregnant. On 11 August 2023, the appellant and PW1 met at a wedding, had sexual intercourse and that is when PW1 informed him that she was pregnant. That the two started living together as husband and wife the following day at the appellant’s home until 4 October 2023 when PW1 was rescued.
14. At the close of the prosecution’s case, the trial court found that the appellant had a case to answer and placed him on his defence. The appellant testified on oath that on 25 August 2023 he met PW1 at a wedding in Kafuani. That PW1was in trouble and upon inquiry, she told him that she was pregnant and that Baraka was responsible but he had denied responsibility. That they met against on 26 August 2023 at a funeral where he greeted her and left. On 30 August 2023, PW 1 again met him at the barbershop and sought advise from him and he told her to go and meet his parents.
15. He went on to state that on 1 September 2023, PW1 went to his home, met his mother, informed her that she was out of school and was staying with her grandmother since her mother was in Saudi Arabia and requested to live with his (the appellant’s) family. That his father went home after one week and followed up with the complainant’s parents.
16. On 4 October 2023, PW2 told him to meet her at the police station and that he was arrested and charged on 5 October 2023. He further testified that PW1 was picked from his home on 3 October 2023 while he was away. In cross examination he stated that PW1 told him that she was pregnant on 25 August 2023 and that he did not inform her relatives, police or her teachers at school but only reported to chief Thaoya and a village elder. He further testified that he told PW1 to go to him home and that she lived there for one month.
17. At the conclusion of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, convicted him and sentencing him to 10 years imprisonment. Aggrieved, the appellant filed the present appeal where he raised the following grounds:
i. The trial court erred in both law and fact by failing to find that his constitutional right to fair trial were infringed.
ii. The trial court erred in both law and fact by failing to consider the discrepancies and inconsistencies in the prosecution evidence.
iii. The trial court erred in both fact and law by failing to find that the prosecution did not prove its case beyond reasonable doubt as required by law.
iv. The trial court erred in both law and fact by imposing a sentence without considering the principles, objectives and current jurisprudence on sentencing.
v. The trial court erred in both law and fact by failing to consider the appellant’s defence.
18. At the hearing of the appeal, both parties relied on their written submissions. The appellant submitted that the prosecution’s case was full of contradictions and discrepancies that made the conviction unsafe. while the Respondent relied on the record. He submitted that the evidence of PW1 was full of inconsistencies and pointed out the statements he considered differed with his testimony given in defence.
19. The appellant further submitted that the burden of proving a pregnancy was occasioned by defilement was upon the complainant, PW1. He argued that PW1 was young, naïve and had been pressured by her mother, PW2 to implicate the appellant. He cited the case of Maina vs R (1970) to support his case.
20. On the ingredient of age, he submitted that the same was not proved. He challenged the authenticity of the birth certificate (exhibit 1) on grounds that it was registered on 4 October 2022 while it stated that she was born on 25 November 2006. He questioned why it took PW2 16 years to get the birth certificate and argued that this raised doubts as to its authenticity. He further submitted that he was not supplied with the birth certificate prior to its production which violated his right to fair trial under Article 50 (2) (b) and (c) of the Constitution. He cited the case of Edwin Nyambogo Onsongo vs R (2016) eKLR to support his case. He urged the court to find in his favour, allow the appeal and set aside the conviction and finding.
21. The respondent in its written submissions opposed the appeal and averred that the appellant was accorded a fair trial as enshrined in Article 50 of the Constitution . It was further argued for the Respondent that the prosecution adduced cogent evidence that was consistent, corroborated to prove all ingredients of the offence to the required standards. That this evidence was not controverted by the defence.
22. On the sentence, the Respondent submitted that while it is clear that the trial court considered the appellant’s mitigation and the Sentencing Guidelines in sentencing the appellant to 10 years imprisonment, the offence under Section 8 (4) of the Sexual Offences Act carries a minimum mandatory punishment of 15 years and that the sentence of 10 years is unlawful in view of the law. He urged this court to set aside the sentence of 10 years and substitute it with the minimum mandatory sentence of 15 years as provided by law. He cited Supreme Court of Kenya Petition No. E018 of 2023, R vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR) to support its argument.
Analysis and determination
23. This being the first appeal, the court has a duty to re-evaluate 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. See Okeno Vs Republic [1972] EA 32 and Oiruri Mose Vs R (2013) eKLR.
24. The Court of Appeal, in Kiilu & Another Vs 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.”
25. 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 (4) 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.
(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 of not less than fifteen years.”
26. 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 Vs Republic , Criminal Appeal No. 72 of 2013.
27. 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.
28. Drawing from the above, the issues for determination are as follows: -
i. Whether the appellant’s constitutional right to fair trial under Article 50 (2) (c ) and (d) was violated
ii. Whether there was proof of penetration.
iii. Whether there was proof of age of the victim.
iv. Whether there was proof of positive identification of the perpetrator.
v. Whether the sentence was illegal and unlawful.
Whether the appellant’s constitutional rights to fair trial under Article 50 (2) (c) and (j) were violated
29. The appellant submitted that he was not supplied with the appellant’s birth certificate produced by PW2 prior to the trial in violation of Article 50 (2) (b) and (c) of the Constitution . He urged the court to disregard that piece of evidence.
30. Article 50 of the Constitution guarantees fair hearing and cannot be limited by dint of Article 25 of the Constitution . Violation of Article 50 (2) of the Constitution would lead a higher court to quash a conviction, invalidate proceedings, or exclude tainted evidence . If the breach is severe enough to compromise the entire trial process, it will result in an acquittal or, in limited cases, an order for a retrial. See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR).
31. Article 50 (2) (b) and (c) of the Constitution provides;
“ 50 (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right: -
(a) ……………………………………….
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;”
32. The court has examined the record of proceedings before the trial court and it shows that the appellant was supplied with charge sheet, statements and evidence by the prosecution on 5 October 2023 which he acknowledged. This was way before the trial commenced. He also had an opportunity on challenging its production (birth certificate) on grounds that he had not been supplied with it but he didn’t. The court finds no evidence to support the allegation of violation of constitutional rights.
Whether there was proof of penetration
33. 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 .
34. “Genital organs” are 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 appellant’s penis in the vagina of the victim, SKJ.
35. The court has examined and analyzed the evidence on record on this issue. PW1’s evidence was that in May 2023, she was sent home from school due to lack of school fees. During this period, she met the appellant at a kinyozi (barbershop) which was next to a salon that he had accompanied her friend Salama to. That the appellant pursued her through Salama’s phone until they met in his kinyozi when he told her that he loved her and they agreed to be lovers. She went on to state that in June 2023, she had sex with the appellant at his friend’s house at Mwabayanyundo. She testified that she realized that she was pregnant out of the intercourse sometimes later after she became sick and went to hospital for treatment. She testified that she had sex with the appellant on several occasions and were living together as husband and wife. She introduced the appellant as her husband.
36. Her evidence was corroborated by PW4, a clinical officer who examined PW1 at Mariakani Sub-County Hospital on 4 October 2023 after it was reported that she had been defiled by a known person. From the medical examination, it was established that her genitalia were normal, her hymen was missing, her vagina muscles were loose, she had discharge in her vagina and that she was 15 weeks and 2 days pregnant. He adduced the P3 form (exhibit 2), Treatment Notes (exhibit 3), Gender Based Violence Form (exhibit 4), obstetric scan (exhibit 5) and Lab request form (exhibit 6) as evidence thereof. Deducing from the above, its clear that the pregnancy occurred in the month of June 2023.
37. The court finds that there is overwhelming evidence to corroborate that of PW1 on the issue of penetration. PW2’s evidence that PW1 was found in the appellant’s house washing dishes was corroborated by PW3’s evidence who found PW1 at the appellant’s home when he visited. It is clear that PW1 and the appellant were living together as confirmed by PW1, PW2, PW3 and PW6 evidence which shows that PW1 was found at the appellant’s home on 4 October 2023.
38. PW1 clearly described that she met the appellant in June 2023 where they had sex at his friend’s house and that they have had sex on several other occasions. This was not controverted at all by the appellant. The court has considered the totality of the evidence and is satisfied beyond reasonable doubt that the appellant penetrated the PW1 in June 2023 while they had sex in Mwabayanyundo and on several other occasions between June and 4 th October 2023. The court finds that this ingredient was proved beyond reasonable doubt.
Proof of age of the victim
39. The age of the victim is a critical ingredient and must be proved for the offence of defilement under Section 8 (1) of the Act to crystalize. See Kamau Vs Republic (Criminal Appeal E003 Of 2024 [2025] KEHC 42 (KLR).
40. Age can be proved 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].
41. PW1 testified that she was 16 years old. This was corroborated by PW2 who went on to was produce PW1’s birth certificate (exhibit 1) as evidence thereof. The said birth certificate shows that PW1 was born on 25 November 2006 hence 16 years in 2023. The appellant submitted that the birth certificate was issue 16 years after the birth of the complainant. There is no law that bars issuance of a birth certificate. Section 8 of the Births and Deaths Registration Act (CAP 149) empowers the principal registrar to issue a birth certificate at any time. The birth certificate was issued on 4 October 2022 which is almost 7 months before the commission of then offence. It cannot be imputed that it was prepared solely for the sake of the current case. The allegation is thus dismissed. The court finds that age of the victim was proved as required by law.
Proof of positive identification of the perpetrator.
42. Evidence on record is that PW1, the victim positively identified the appellant as responsible for the offence. She testified that she knew the appellant since May 2023 where they first met in the kinyozi and subsequent times thereafter which culminated in their sexual encounter in June 2023 and their living together. The appellant in defence admitted to have met PW1 on several occasions and that he invited her to their home to live there upon her request. PW3 who testified that he knew both PW1 and the appellant testified that he found PW1 in the appellant’s home when he went there to confirm if indeed, she was there. The court finds that this element was proved beyond reasonable doubt. The court, having re-valuated and re-examined the evidence adduced in the trial, finds that all ingredients of the offence of defilement were duly proved and upholds the conviction by the trial court.
Whether the sentence was illegal and unlawful
43. Turning on the sentence, the appellant submitted that it does not accord to the Sentencing Guidelines, current jurisprudence or taken into account his mitigation. The Respondent on the other hand sought enhancement in its submissions on grounds that the sentence of 10 years is below the mandatory minimum of 15 years as set by law.
44. Sentencing is an exercise of discretion by the trial court. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”
45. As stated earlier, section 8 (4) of the Sexual Offences Act sets a mandatory minimum sentence of 15 years imprisonment. The Supreme Court in Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi (Supra) affirmed that minimum mandatory sentences set out under Section 8 of the Sexual Offences Act are lawful, apply and must be respected. It is thus apparent that the sentence of 10 years awarded by the trial court is below the minimum of 15 years set out by Section 8 (4) of the act and thus unlawful.
46. Although Section 354(3) of the Criminal Procedure Code grants the High Court power to enhance or vary a sentence imposed by the trial court, that power must be exercised with caution, and where there is no appeal against sentence, the appellant must be given prior notice of the intention to enhance the sentence.
47. The Court of Appeal in Samwel Mbugua Kihwanga v Republic [2016] KECA 281 (KLR) observed as follows:
“…the obligation on an appellate court to fore- warn or caution an appellant before enhancing a sentence imposed against him by a trial court is not anchored on any law but in practice that has now gained such notoriety that it is proper that an appellant be warned of the consequences of proceeding with his appeal in circumstances where so proceeding may likely result in the sentence being enhanced to his disadvantage. It is simply to enable him weigh the options available and then make a decision that suits his best interests, especially in circumstances where, like in the instant appeal, an appellant is disadvantaged for not being schooled both in the law and legal procedures he may be confronted with during the course of the trial of his appeal.”
48. Drawing for the above, despite powers to vary granted under Section 354 (3) of the Criminal Procedure Code , a sentence can only be revised upwards on appeal by the State or upon prior notice of enhancement being to the appellant on the possibility of enhancement of sentence. See also Mwanzia vs R (2023) KECA 420 (KLR).
49. In this case, the Respondent did not issue a notice of enhancement of sentence or warned the appellant beforehand so as to enable him make an informed decision on whether or not he wished to proceed with the appeal or abandon it. Enhancing the sentence without notice as aforesaid would violate the appellants right to fair trial under Article 50 of the Constitution , thereby rendering the whole proceedings a nullity by dint of Article 2 (4).
50. The upshot is that the appeal lacks merit and is dismissed accordingly. The conviction and sentence by the trial court is upheld.
Dated, signed and delivered virtually at Nairobi on this 25 th day of June 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Criminal appeal No. E025 of 2025