(Being an Appeal against the judgment of Chief Magistrate’s Court at Malindi Hon. E.K Usui (CM) delivered on 17 th October, 2024)
The appellant was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 18 th June, 2023 and 23 rd June, 2023 at Blue Bay village, Watamu location in Malindi Sub-County within Kilifi County intentionally and unlawfully caused his penis to penetrate the vagina of E.M.M a child aged 15 years.
The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates between 18 th June, 2023 and 23 rd June, 2023 at Blue Bay village, Watamu location in Malindi Sub-County within Kilifi County intentionally and unlawfully touched the vagina of E.M.M a child aged 15 years with his penis.
The appellant was also charged with another count of kidnapping contrary to Section 257 of the Penal Code. The particulars were that on diverse dates between 18 th June, 2023 and 23 rd June, 2023 at Blue Bay village, Watamu location in Malindi Sub-County within Kilifi County, kidnapped E.M.M from custody of her mother namely Loise Ndinda.
The prosecution called four witnesses to prove the charges against the appellant. The trial court after considering the evidence adduced found the appellant guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced the appellant to serve 20 years imprisonment. The trial court did not make a finding on the charge in count two of kidnapping contrary to Section 257 of the Penal Code.
Aggrieved by the conviction and sentence, the appellant preferred this appeal. In a memorandum of appeal and amended grounds of appeal, the appellant raised the following grounds:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution case was marred with discrepancies and inconsistencies.
2. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove the charges beyond reasonable doubt.
3. That the learned trial magistrate erred in law and facts by failing to consider that the elements of age and penetration were not proved as required.
4. That the learned trial magistrate erred in law and facts by failing to adequately consider the appellant’s defence of alibi.
5. That the learned trial magistrate erred in law and facts by failing to conduct voire dire examination to the victim.
Both the appellant and respondent filed written submissions which I have carefully considered.
This being the first appeal, this court is expected to analyze and evaluate all the evidence adduced before the lower court and arrive at its own independent decision, of course noting that it did not have the opportunity to hear and see the witnesses testify. I am guided by the celebrated case of Okeno vs Republic (1972) E.A 32. Guided by the foregoing principle, I have re-evaluated and reconsidered the evidence adduced by the prosecution witnesses and the accused defence in the lower court.
Before considering the grounds of appeal the appellant raised in the memorandum of appeal and the amended grounds of appeal I have set out hereinabove, it is important to consider a ground of appeal argued in the submissions by the appellant that his right to fair trial as provided for under Article 50(2)(b) of the Constitution and Section 169 of the Criminal Procedure Code was violated.
Article 50(2)(b) of the Constitution provides:
“50(2) Every accused person has a right to a fair trial, which includes the right-
(b) to be informed of the charge, with sufficient detail to answer it;
Section 169(1) and (3) of the Criminal Procedure Code provides:
“169(1) Every judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
(3) if the court convicts, the judgment must specify the offence and the section under which the accused is convicted.”
In the instant case the appellant has argued that he was charged with defilement contrary to Section 8(1)(3) of the Sexual Offences Act in count one and kidnapping contrary to Section 257 of the Penal Code in count two. However, the trial magistrate did not pronounce herself on the second count thus violating the appellant’s right and that the trial was a nullity. He cited the case of George Mudewa vs Republic Kakamega HCCRA No. 11 of 2017.
I have looked at the judgment of the trial court and I agree with the appellant that the trial magistrate did not pronounce herself on the charge in count two of kidnapping contrary to Section 257 of the Penal Code. The trial magistrate was duty bound to make a definite finding on that count. By failing to do so the trial magistrate fell in error.
Having found that the trial magistrate breached Section 169 of the Criminal Procedure Code by failing to make a finding in respect count two, the question is whether the judgment of the trial court should be declared a nullity as urged by the appellant. In my view and in the circumstances of this case I am not persuaded that the judgment should be declared a nullity or the matter should be remitted back for trial in respect of that count. It is my considered view that this court can consider the evidence adduced before the trial court and make a finding in respect of the said count.
The charge in count two was for kidnapping contrary to Section 257 of the Penal Code which provides:
“Any person who kidnaps any person from Kenya or from lawful guardianship is guilty of a felony and is liable to imprisonment for seven years.”
From the foregoing the ingredients which the prosecution must establish are that the accused takes away a person form lawful custody and the action of taking away the person must be without the consent of the guardian. In the instant case the evidence led by the prosecution and particularly the evidence of PW1 is that the appellant sent her fare to travel to Watamu. She travelled at own volition. Much as the trial court did not make a finding on the charge of kidnapping, the evidence adduced was short of proving that the appellant took away the complainant from the lawful custody of her guardian. As such the evidence adduced was insufficient to proof the charge of kidnapping and the appellant cannot be found guilty of the same.
Regarding the charge of defilement on which the appellant was convicted, the appellant in his submissions argued that the prosecution failed to establish the essential ingredients of the offence. The appellant faulted the trial magistrate for finding that there was penetration when the evidence adduced was contradictory. He pointed out the contradiction on the dates when the complainant was defiled submitting that though the charge sheet indicated the dates of defilement as between 15 th June, 2023 and 23 rd June, 2023 the complainant said she was examined on 23 rd June, 2023. This he submitted was in contradiction with evidence of PW3 who said he examined the complaint on 24 th July, 2023 filled the P3 Form on 12 th July, 2023. In the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR the Court of Appeal cited with approval the Ugandan case of Twahangane Alfred vs Uganda (2003) UGCA on contradictions and held:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessary lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
In the instant case, the contradictions alluded to by the appellant looked at against the evidence adduced were minor so as to disapprove the evidence adduced by the prosecution. The complainant was categorical in her evidence that when he went to Watamu on invitation of the appellant, they had sex on several occasions. The appellant in his defence stated that he stayed with the complainant from 18 th to 23 rd June, 2023 and he had sex with her on assumption that the complainant was aged 18 years. This evidence was corroborated by the medical evidence adduced by PW3 who upon examination found that the complainant’s hymen was broken. The trial magistrate therefore cannot be faulted for making a finding that there was penetration which is an essential ingredient of the offence of defilement.
The issue of age of the complainant and identification of the appellant as the perpetrator was not challenged by the appellant hence the trial court correctly found that the complainant was aged 15 years and that the appellant was positively identified as the perpetrator.
The appellant faulted the trial court for not considering his defence as contemplated under Section 8(5) of the Sexual Offences Act. He submitted that there was nowhere the complainant stated that the appellant had seen her in school uniform.
Under Section 8(5) of the Sexual Offences Act it is a defence if the child deceived an accused person into believing that he/she was over the age of 18 years at the time of the alleged offence and that the accused person reasonably believed that the child was over the age of 18 years. It is trite that when the accused opts to rely on defence under Section 8(5) of the Act, the evidential burden of proof shifts to the accused person. (see Irene Atieno Ochieng vs Republic (2017) e KLR).
In the instant case, the appellant never alluded that the complainant deceived him that she was aged over 18 years. In any case, there was overwhelming evidence and particularly by PW2 that the appellant was a neighbour in Bahati in Nairobi and therefore he knew or ought to have known that the complainant was still in school a clear indication that she could not have been over 18 years so as to deceive the appellant. Further the appellant never indicated to the trial court that he took any steps to ascertain the age of the complainant. The trial court cannot therefore be faulted as she considered the appellant defence under Section 8(5) of the Sexual Offences Act and found that the same did not satisfy the requirements of the said section.
On the sentence the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Under Section 8(3) of the Act, the punishment provided for defilement of a child aged between 12 and 15 years is for a term of not less than 20 years. the appellant was sentenced to serve 20 years which is the minimum sentence. The trial court cannot therefore be faulted for imposing the minimum sentence and the same is lawful.
The upshot of the foregoing is that the appeal on conviction and sentence in respect of the charge of defilement contrary to Section 8((1)(3) is hereby upheld and the appeal is dismissed.
Dated, signed and delivered virtually this 28 th day of May, 2026.
In presence of
Appellant appearing virtually
Ms. Mutua for respondent appearing virtually
Ms. Millicent Otwo court assistant.
2
The appellant was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 18 th June, 2023 and 23 rd June, 2023 at Blue Bay village, Watamu location in Malindi Sub-County within Kilifi County intentionally and unlawfully caused his penis to penetrate the vagina of E.M.M a child aged 15 years.
The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates between 18 th June, 2023 and 23 rd June, 2023 at Blue Bay village, Watamu location in Malindi Sub-County within Kilifi County intentionally and unlawfully touched the vagina of E.M.M a child aged 15 years with his penis.
The appellant was also charged with another count of kidnapping contrary to Section 257 of the Penal Code. The particulars were that on diverse dates between 18 th June, 2023 and 23 rd June, 2023 at Blue Bay village, Watamu location in Malindi Sub-County within Kilifi County, kidnapped E.M.M from custody of her mother namely Loise Ndinda.
The prosecution called four witnesses to prove the charges against the appellant. The trial court after considering the evidence adduced found the appellant guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced the appellant to serve 20 years imprisonment. The trial court did not make a finding on the charge in count two of kidnapping contrary to Section 257 of the Penal Code.
Aggrieved by the conviction and sentence, the appellant preferred this appeal. In a memorandum of appeal and amended grounds of appeal, the appellant raised the following grounds:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution case was marred with discrepancies and inconsistencies.
2. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove the charges beyond reasonable doubt.
3. That the learned trial magistrate erred in law and facts by failing to consider that the elements of age and penetration were not proved as required.
4. That the learned trial magistrate erred in law and facts by failing to adequately consider the appellant’s defence of alibi.
5. That the learned trial magistrate erred in law and facts by failing to conduct voire dire examination to the victim.
Both the appellant and respondent filed written submissions which I have carefully considered.
This being the first appeal, this court is expected to analyze and evaluate all the evidence adduced before the lower court and arrive at its own independent decision, of course noting that it did not have the opportunity to hear and see the witnesses testify. I am guided by the celebrated case of Okeno vs Republic (1972) E.A 32. Guided by the foregoing principle, I have re-evaluated and reconsidered the evidence adduced by the prosecution witnesses and the accused defence in the lower court.
Before considering the grounds of appeal the appellant raised in the memorandum of appeal and the amended grounds of appeal I have set out hereinabove, it is important to consider a ground of appeal argued in the submissions by the appellant that his right to fair trial as provided for under Article 50(2)(b) of the Constitution and Section 169 of the Criminal Procedure Code was violated.
Article 50(2)(b) of the Constitution provides:
“50(2) Every accused person has a right to a fair trial, which includes the right-
(b) to be informed of the charge, with sufficient detail to answer it;
Section 169(1) and (3) of the Criminal Procedure Code provides:
“169(1) Every judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
(3) if the court convicts, the judgment must specify the offence and the section under which the accused is convicted.”
In the instant case the appellant has argued that he was charged with defilement contrary to Section 8(1)(3) of the Sexual Offences Act in count one and kidnapping contrary to Section 257 of the Penal Code in count two. However, the trial magistrate did not pronounce herself on the second count thus violating the appellant’s right and that the trial was a nullity. He cited the case of George Mudewa vs Republic Kakamega HCCRA No. 11 of 2017.
I have looked at the judgment of the trial court and I agree with the appellant that the trial magistrate did not pronounce herself on the charge in count two of kidnapping contrary to Section 257 of the Penal Code. The trial magistrate was duty bound to make a definite finding on that count. By failing to do so the trial magistrate fell in error.
Having found that the trial magistrate breached Section 169 of the Criminal Procedure Code by failing to make a finding in respect count two, the question is whether the judgment of the trial court should be declared a nullity as urged by the appellant. In my view and in the circumstances of this case I am not persuaded that the judgment should be declared a nullity or the matter should be remitted back for trial in respect of that count. It is my considered view that this court can consider the evidence adduced before the trial court and make a finding in respect of the said count.
The charge in count two was for kidnapping contrary to Section 257 of the Penal Code which provides:
“Any person who kidnaps any person from Kenya or from lawful guardianship is guilty of a felony and is liable to imprisonment for seven years.”
From the foregoing the ingredients which the prosecution must establish are that the accused takes away a person form lawful custody and the action of taking away the person must be without the consent of the guardian. In the instant case the evidence led by the prosecution and particularly the evidence of PW1 is that the appellant sent her fare to travel to Watamu. She travelled at own volition. Much as the trial court did not make a finding on the charge of kidnapping, the evidence adduced was short of proving that the appellant took away the complainant from the lawful custody of her guardian. As such the evidence adduced was insufficient to proof the charge of kidnapping and the appellant cannot be found guilty of the same.
Regarding the charge of defilement on which the appellant was convicted, the appellant in his submissions argued that the prosecution failed to establish the essential ingredients of the offence. The appellant faulted the trial magistrate for finding that there was penetration when the evidence adduced was contradictory. He pointed out the contradiction on the dates when the complainant was defiled submitting that though the charge sheet indicated the dates of defilement as between 15 th June, 2023 and 23 rd June, 2023 the complainant said she was examined on 23 rd June, 2023. This he submitted was in contradiction with evidence of PW3 who said he examined the complaint on 24 th July, 2023 filled the P3 Form on 12 th July, 2023. In the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR the Court of Appeal cited with approval the Ugandan case of Twahangane Alfred vs Uganda (2003) UGCA on contradictions and held:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessary lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
In the instant case, the contradictions alluded to by the appellant looked at against the evidence adduced were minor so as to disapprove the evidence adduced by the prosecution. The complainant was categorical in her evidence that when he went to Watamu on invitation of the appellant, they had sex on several occasions. The appellant in his defence stated that he stayed with the complainant from 18 th to 23 rd June, 2023 and he had sex with her on assumption that the complainant was aged 18 years. This evidence was corroborated by the medical evidence adduced by PW3 who upon examination found that the complainant’s hymen was broken. The trial magistrate therefore cannot be faulted for making a finding that there was penetration which is an essential ingredient of the offence of defilement.
The issue of age of the complainant and identification of the appellant as the perpetrator was not challenged by the appellant hence the trial court correctly found that the complainant was aged 15 years and that the appellant was positively identified as the perpetrator.
The appellant faulted the trial court for not considering his defence as contemplated under Section 8(5) of the Sexual Offences Act. He submitted that there was nowhere the complainant stated that the appellant had seen her in school uniform.
Under Section 8(5) of the Sexual Offences Act it is a defence if the child deceived an accused person into believing that he/she was over the age of 18 years at the time of the alleged offence and that the accused person reasonably believed that the child was over the age of 18 years. It is trite that when the accused opts to rely on defence under Section 8(5) of the Act, the evidential burden of proof shifts to the accused person. (see Irene Atieno Ochieng vs Republic (2017) e KLR).
In the instant case, the appellant never alluded that the complainant deceived him that she was aged over 18 years. In any case, there was overwhelming evidence and particularly by PW2 that the appellant was a neighbour in Bahati in Nairobi and therefore he knew or ought to have known that the complainant was still in school a clear indication that she could not have been over 18 years so as to deceive the appellant. Further the appellant never indicated to the trial court that he took any steps to ascertain the age of the complainant. The trial court cannot therefore be faulted as she considered the appellant defence under Section 8(5) of the Sexual Offences Act and found that the same did not satisfy the requirements of the said section.
On the sentence the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Under Section 8(3) of the Act, the punishment provided for defilement of a child aged between 12 and 15 years is for a term of not less than 20 years. the appellant was sentenced to serve 20 years which is the minimum sentence. The trial court cannot therefore be faulted for imposing the minimum sentence and the same is lawful.
The upshot of the foregoing is that the appeal on conviction and sentence in respect of the charge of defilement contrary to Section 8((1)(3) is hereby upheld and the appeal is dismissed.
Dated, signed and delivered virtually this 28 th day of May, 2026.
In presence of
Appellant appearing virtually
Ms. Mutua for respondent appearing virtually
Ms. Millicent Otwo court assistant.
2