(Being an appeal against the conviction and sentence by Hon. G. Mokua (RM) in Kaloleni SPM (Sexual Offence) Case No. E029 of 2025)
1. The appellant herein, Patrick Safari John, was convicted by the Senior Principal Magistrate’s Court at Kaloleni 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 twenty (20) years imprisonment.
Back ground
2. The particulars of the charge were that on diverse dates between November 2024 and 1 July 2025 at Mwabayanyundo Village, Kaloleni Sub-County within Kilifi County, he intentionally caused his penis to penetrate the vagina of J.U, a child aged 14 years. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
3. The appellant denied the charges prompting the trial where the prosecution called six (6) witnesses to prove its case. The prosecution’s case was that the complainant, PW1, was a minor aged 14 years. She testified after voir dire examination was conducted by the trial court, that she knew the appellant as Patrick Safari John. She stated that in November 2024 the appellant told her that he loved her, took her to his house at Mwabayanyundo and had sexual intercourse with her.
4. She further testified that on 15 April 2025, the appellant picked her from home on the pretext that he would take her to church but instead took her to his house where she stayed for about two weeks and they had sexual intercourse daily. In June 2025 she missed her menses and informed the appellant who told her that she should take a pregnancy test but she didn’t. In June 2025, she informed her mother, PW2 that she had missed her menses which prompted her to inform the appellant’s parents. That in July 2025, she failed to return home and instead spent the night at her friends home since she was stressed, which led to PW2 reporting her missing. The next day, she returned home and the matter was reported to the police where she was taken for medical examination that established that she was pregnant. This led to the arrest and subsequent arraignment of the appellant .
5. PW2, Constance Rehema Kaingu, the complainant’s mother, testified that the appellant used to be their rider and that on 15 April 2025 he picked the complainant on the understanding that he was taking her to church. The complainant did not return home that evening. The following day, the appellant called PW2 and informed her that he was with the complainant. The appellant’s mother, PW3 later informed PW2 that the complainant was at their home. After about two weeks, the appellant escorted the complainant back home. PW2 later reported the matter to the police after the complainant failed to return home sometimes in July 2025 but she later went home the next day. Following the report, she was taken to the hospital where it was discovered that she was pregnant.
6. PW3, Khadija Mwaka Mvumba, the appellant’s mother, testified that she saw the complainant at the appellant’s house. She stated that the appellant knew the complainant and knew that she was a student. She further testified that there was no bad blood between the complainant and the appellant or between their families.
7. PW4, John Nyanje Emmanuel, the appellant’s father, testified that he saw the complainant near the appellant’s house and summoned the appellant. The complainant informed him that her mother knew that she was at their home. PW4 and PW3 later met the complainant’s mother, after which the appellant escorted the complainant back home.
8. PW5, Mwangolo Chigulu, a clinical officer at Mariakani Sub-County Hospital, examined the complainant on 2 July 2025 and established that she was 13 weeks pregnant, her hymen was absent, her sphincter muscles were loose and she had a sexually transmitted infection leading to a conclusion that there was vaginal penetration and she was pregnant. He produced the P3 form, treatment notes, laboratory request, lab results and obstetric ultrasound scan as evidence.
9. PW6, PC Lawrence Wambua Mutua, the investigating officer’s evidence was that on 1 July 2025 a report of a missing child was made by PW2.The complainant returned home the next day and was taken to the police station on 2 July 2025 . Upon interrogation, the complainant stated that she had ran away because she was pregnant and was stressed. A defilement report was then recorded, the complainant was issued with a P3 form, medical examination conducted and the appellant was later arrested after being identified by the complainant as responsible.
10. At the close of the persecution's case, the trial court held that a prima facie case had been proved and placed the appellant on his defence.
11. The appellant testified on oath without calling any witness. He denied defiling the complainant and stated that he used to take the complainant and her mother to church by motorcycle. He also contended that he was 15 years old which prompted the trial court to inquire into his age where a copy of his birth certificate was shown in court indicating that he was born on 27 November 2000 hence 24 years. The appellant nevertheless maintained that he was 15 years old.
12. At the close of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, found the appellant guilty, convicted him and sentenced him to 20 years imprisonment as aforestated.
Appeal
13. Aggrieved by the appellant filed the present appeal where he raised the following grounds:
i. That the trial court erred in fact and law by failing to consider that the appellant was 15 years of age and a minor.
ii. That the trial court erred in fact and law by failing to order a DNA test to confirm that he had committed the offence as required under section 36 of the Sexual Offences Act.
iii. That the trial court erred in fact and law by failing to consider that the appellant was unfairly targeted despite the fact that it was a consensual relationship.
iv. That the trial court erred in fact and law by failing to find that the appellant’s right to fair trial under Article 50 (2) (j) of the Constitution was violated when he was denied access to the prosecution case and when his defence was not considered.
v. That the trial court erred in fact and law by failing to find that the prosecution did not prove its case beyond reasonable doubt.
vi. That the trial court erred in fact and law by convicting the appellant without direct evidence in form of eye witnesses and based on hearsay.
vii. That the trial court erred in fact and law by shifting the burden of proof to the appellant.
viii. That the trial court erred in fact and law by convicting him against the weight of the evidence.
ix. That the trial court erred in fact and law by passing a sentence that was harsh and excessive.
Appellant’s submissions
14. The appeal was canvased by written submissions which were filed by both Parties. The appellant was represented by Ms M Ngari learned Counsel who filed written submission dated 30 April 2026 while the Respondent was represented by Ms Ngina Mutua learned Counsel who filed written submissions dated 30 April 2026.
15. The appellant submitted that the appellant was 15 years old at the time of sentencing while the complainant was 14 years old. He submitted that he was born on 27 November 2010 stating that PW3 his mother having testified that she was 35 years held and hence there was no way that the appellant was born in 2010. It was submitted that sexual intercourse between minors should not be criminalized but both should be treated as victims of the offence. It was argued that the appellant ought not to have been given a custodial sentence.
16. The appellant submitted that the trial court should have ordered for an age assessment test to ascertain the age of the appellant and that failure to do caused a grave miscarriage of justice.He cited the cases of Matibe vs Repbulic (2010) eKLR and CKW vs Republic (2014) eKLR in support of its argument.
17. It was further contended that it is necessary to call for a DNA test in order to conclusively ascertain that the appellant was responsible for the complainant’s pregnancy. The court was invited to invoke its powers under Section 358 (1) of the Criminal Procedure Code and order for a DNA test as additional evidence. The case of J ames Mwamba Mwandoe vs Republic (2016) eKLR was cited in support.
18. It was submitted that the appellant being a child was not accorded a fair trial by the failure to have an advocate assigned to him. The court was also called upon to consider the place of mandatory minimum sentences in view of their grave violation to fundamental human rights principles under Article 53 of the Constitution. The court was urged to reduce the sentence on account of the age of the appellant, ie 15 years.
Respondent’s submissions
19. The respondent opposed the appeal. It was submitted that the prosecution proved the three ingredients of defilement, namely penetration, age of the complainant and identification of the appellant. The respondent argued that DNA testing is not a mandatory requirement to prove defilement and relied on the cases of HWN vs Republic (2023) KECA 295 (KLR) and Robert Mutungi Muumbi vs Republic (2015) eKLR.
20. It was further submitted that the complainant’s age was proved by a birth certificate she showed that she was born on 15 April 2011, that the appellant was positively identified by recognition, and that section 124 of the Evidence Act allows a conviction in a sexual offence on the evidence of the victim alone where the court believes the victim and records reasons for that belief.
21. It was also submitted that the appellant attempted to mislead the court that he was 15 years old during defence hearing but this was rebutted by his birth certificate which showed that he was born on 27 November 2010 and hence 25 years at the time of commission of the offence.
22. The Respondent submitted that the appellant had a duty to prove allegations of violation of fundamental rights and freedoms. See Anarita Karimi Njiru vs Republic (1976-1980)KLR 1272, Matiba vs AG (1990) KLR 666 and Leonard Otieno vs Airtell Kenya Ltd (2018) eKLR . However, no evidence was tendered to show violation of constitutional rights.
23. The Respondent further submitted that all ingredients of the offence being age of the victim, positive identification of the perpetrator and proof of penetartion were proved beyond reasonable doubt. Reliance was placed on the cases of George Opondo Olunga vs Republic (2016) eKRL and Daisy Chepkoech vs Republic (2022) eKLR.
24. On sentence, the respondent submitted that section 8 (3) of the Sexual Offences Act prescribes a sentence of not less than twenty years imprisonment and that the sentence imposed by the trial court was lawful.
Analysis and determination
25. 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 Republic (2013) eKLR.
26. The Court of Appeal in Kiilu & Another Vs Republic (2005) 1 KLR 174 stated that 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, while making allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.
27. The appellant was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The said section provides;
“ 8 (1) a person who commits an act which causes penetration with a child is guilty of the offence termed defilement.
(2)…………
(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.
28. The ingredients of the offence of defilement are proof of penetration, proof that the complainant was a child, and positive identification of the perpetrator. See Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013 and George Opondo Olunga Vs Republic [2016] eKLR.
29. Drawing from the above, the issues for determination are as follows:
i. Whether the offence of defilement was proved beyond reasonable doubt
ii. Whether the failure to conduct DNA testing was fatal to the prosecution case
iii. Whether the appellant’s right to fair trial under Article 50 (2) of the Constitution was violated
iv. Whether the sentence was unlawful, harsh or excessive
Whether the offence of defilement was proved beyond reasonable doubt
30. On penetration, 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. Genital organs are defined to include the whole or part of male or female genital organs and, for purposes of the Act, include the anus.
31. The appellant contended that there were no eye witnesses to prove the case against him and that his conviction was based on hearsay.
32. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Criminal Appeal No. 35 of 1995.
33. The court of appeal in K assim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
34. PW1 testified that in November 2024, the appellant took her to his house at Mwabayanyundo and had sexual intercourse with her by inserting his penis into her vagina. Again, on 15 April 2025, the appellant picked her from home on the pretext that he would take her to church but instead took her to his house where she stayed for about two weeks and they had sexual intercourse daily. In June 2025 she discovered that she was pregnant and identified the appellant as responsible.
35. Her evidence was corroborated PW2 her mother who testified that the appellant was their rider and she was at home on 15 April 2025 when the appellant picked the complainant on the understanding that he was taking her to church but she did not return home that evening. The following day, the appellant called PW2 and informed her that he was with the complainant. The appellant’s mother, PW3 later informed PW2 that the complainant was at their home. After about two weeks, the appellant escorted the complainant back home. PW3 and PW4 the appellant’s mother and father respectively, confirmed that indeed they saw the complainant staying with the appellant and even contacted PW2. This evidence was not rebutted.
36. PW5 the clinical officer examined the complainant and established her hymen was absent, she she had loose sphincter muscles and was 13 weeks pregnant. The court finds that the complainant's evidence was direct, consistent and duly corroborated by witness testimonies as well as medical evidence leaving no doubt that there was penetration.
Whether the failure to conduct DNA testing was fatal to the prosecution case
37. he appellant submitted that DNA which would have conclusively determined if he had committed the offence was not undertaken and that the failure thereof had negatively impacted the decision to his detriment. He urged the court to invoke its powers under Section 358 (1) of the Criminal Procedure Code to order that a DNA be conducted and remit the case to the trial court for purposes of collecting the said evidence.
38. The requirement of DNA testing in sexual offences cases is addressed in Section 36 of the Act. The said Section provides:
“36. (1) Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence”.
39. The question for determination is whether the failure to conduct a DNA test is fatal to the prosecution’s case. Section 36 (1) of the Sexual Offences Act is not couched in mandatory terms but grants discretion to the court to order for forensic or other scientific testing, including DNA for purposes of obtaining additional evidence to link a party to the offence. That provision does not oust the provisions of Section 124 of the Evidence Act which remains applicable to this case.
40. The court of appeal in the case of Williamson Sowa Mbwanga Vs Republic (2016) eKLR held:
“As regards the first ground of appeal, it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred V. Uganda, Cr. App. No. 139 of 2001)”.
41. The absence of DNA does not absolve the appellant from the allegations. The court having considered the evidence on record, finds that penetration was proved beyond reasonable doubt.
42. On the issue of age, 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.
43. The High Court in Kamau vs 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.”
44. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vs Republic Criminal Appeal No. 21 of 2015 [2017] .
45. The complainant testified that she was 14 years and produced a birth certificate showing that she was born on 15 April 2011. Her testimony was corroborated by PW2. The offence was committed on diverse dates between November 2024 and 1 July 2025, meaning that she was between 13 and 14 years old at the material time and hence a child within the meaning of the Sexual Offences Act.
46. On identification of the appellant as the perpetrator, the offence occurred over a length of time and the complainant positively identified the appellant as the perpetrator. The two were well known to each other, a fact that is not disputed by any party. PW2, PW3 and PW4 confirmed and corroborated the complainant's testimony through their evidence that the appellant who was a motor cycle rider took away the complainant on 15 April 2025, lived with her for two weeks before she returned home. This placed him in the scene and gave credence to the complainant’s evidence. The court finds that identification was proved by recognition.
47. The court has considered the appellant's defence and finds that it did not displace the finding in any of ingredients. Most of the appellant’s testimony corroborated the complainant’s save for the fact that he denied committing the offence. Evidence points to a consensual relationship that was in the knowledge of the parents of both the complainant and appellant. The court finds that all ingredients of the offence were proved beyond reasonable doubt.
Whether the appellant’s right to fair trial under Article 50 (2) (h) and (j) of the Constitution was violated
48. The appellant in his grounds of appeal averred that his right to fair trial as guaranteed under Article 50 (2) (j) was violated when he was denied access to the prosecution evidence and his defence was not considered. In his submissions, he contended that being a child, he was denied legal representation despite the possibility of a lengthy sentence which resulted in violation of his constitutional right to legal representation.
49. Article 50 of the Constitution guarantees fair hearing and fair trial a violation of which will lead to the various remedies that include quashing of convictions, invalidation of proceedings, or exclusion tainted evidence, acquittal where the breach is severe enough to compromise the entire trial process, or in limited cases, an order for a retrial. See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR).
50. his court is enjoined to interrogate and resolve any allegations of violation of constitutional rights by dint of Article 165 of the Constitution. If established, such violations can alter the course of proceedings. On the first allegation, that is, whether the appellant was denied access to evidence by the prosecution, Article 50 (2) (j) of the Constitution provides that every accused person has a right to fair trial which includes the right to be informed in advance of the evidence the prosecution intents to rely on, and to have reasonable access to it.
51. The record of proceedings show that on 23 July 2025 immediately after taking plea, the prosecution informed the court that he had supplied the appellant with a copy the charge sheet and the appellant confirmed receipt thereof. On 6 August 2025, the prosecution informed the court that it had supplied the appellant with witness statements and other medical documents and the appellant confirmed receipt thereof. The trial commenced one month later on 2 September 2025 when PW1 testified and the appellant informed the court he was ready to proceed. At no stage of the proceedings did he raise the issue or object that he had not been supplied with any document relied upon. The court finds this allegation lacks merit and is dismissed.
52. On the second issue, the appellant avers that he was a minor aged 15 years and ought to have been provided legal representation at public expense. It was also contended that the court should have called for additional evidence to ascertain the age of the appellant. The record of proceedings show that the age of the appellant was determined during defence hearing where he was shown a copy of his birth certificate which showed he was born on 27 November 2000. He did not rebut this fact or present any evidence to show otherwise. The court finds that on the basis of the evidence placed before it, the trial court was satisfied as to the age of the appellant and did not need to make further inquiries on the matter.
53. On whether he suffered prejudice due to lack of legal representation, the right to state funded legal representation guaranteed under Article 50(2)(h) of the Constitution and operationalized by the Legal Aid Act 2016, would arise where substantial injustice would otherwise result. To the courts mind, the right is not automatic but dependent on whether substantial injustice would otherwise occur if an accused is not represented. The issue for determination therefore is, what is the meaning of substantial injustice?
54. The Supreme Court, in Republic vs Chengo & 2 others (2017) KESC 15 (KLR) held that in determining whether substantial injustice would be suffered in criminal matters, the court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include the seriousness of the offence, severity of the sentence, the ability of the accused person to pay his own legal representation, whether the accused is a minor, the literacy of the accused and complexity of the charge against the accused. The list is not exhaustive and each case is to be determined based on its own peculiar circumstances.
55. In this case, in determining the question of whether the appellant is likely to have suffered substantial injustice due to lack of state funded representation, the court has considered the complexity of the case and whether the appellant was able to follow the proceeding before the trial court and defend himself. First, the record shows that the appellant was advised of his right to legal representation and granted time to obtain counsel but failed to do so. He later informed the court that he was ready to proceed.
56. Secondly, whereas the sentence is severe in view of the nature of the offence, the case was not complex at all. It was mainly based on issues of fact which were directly within the appellant’s knowledge. The witnesses testified on questions of fact and the documents were voluminous or not complex at all. A perusal of the record of the trial court showed that the appellant actively participated in the trial and cross- examined all the witnesses. It was therefore not evident or apparent that he suffered any substantial injustice that would require interference of the court.
57. The court finds no evidence to support the contention of violation of constitutional rights as alleged.
Whether the sentence was unlawful, harsh or excessive
58. The appellant was sentenced to twenty (20) years imprisonment. Section 8 (3) of the Sexual Offences Act provides that a person who commits the 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.
59. Sentencing is an exercise of discretion by the trial court and an appellate court will not interfere with a sentence unless the sentence is illegal, based on a wrong principle, or is manifestly harsh or excessive in the circumstances. See Bernard Kimani Gacheru Vs Republic (2002) eKLR and Wanjema Vs Republic (1971)EA 493.
60. The Supreme Court in Muruatetu & another Vs Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) clarified that the decision in Muruatetu did not invalidate mandatory or minimum sentences in the Sexual Offences Act or any other statute. The Supreme Court later settled the issue in Republic Vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), holding that the mandatory minimum sentences under the Sexual Offences Act are lawful and that courts have no discretion to impose a sentence below the prescribed minimum.
61. The sentence of twenty (20) years imprisonment is the statutory minimum and lawful. The trial court did not have any discretion to award a lower sentence and this court finds that the sentence is proper and lawful.
Final Orders
62. In light of the above, the court finds the appeal against conviction and sentence lacks merit and is accordingly dismissed.
Dated, Signed and Delivered Virtually at Nairobi on this 23rd day of July 2026
JOSEPH KIPKOECH BIOMDO,
JUDGE
1. The appellant herein, Patrick Safari John, was convicted by the Senior Principal Magistrate’s Court at Kaloleni 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 twenty (20) years imprisonment.
Back ground
2. The particulars of the charge were that on diverse dates between November 2024 and 1 July 2025 at Mwabayanyundo Village, Kaloleni Sub-County within Kilifi County, he intentionally caused his penis to penetrate the vagina of J.U, a child aged 14 years. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
3. The appellant denied the charges prompting the trial where the prosecution called six (6) witnesses to prove its case. The prosecution’s case was that the complainant, PW1, was a minor aged 14 years. She testified after voir dire examination was conducted by the trial court, that she knew the appellant as Patrick Safari John. She stated that in November 2024 the appellant told her that he loved her, took her to his house at Mwabayanyundo and had sexual intercourse with her.
4. She further testified that on 15 April 2025, the appellant picked her from home on the pretext that he would take her to church but instead took her to his house where she stayed for about two weeks and they had sexual intercourse daily. In June 2025 she missed her menses and informed the appellant who told her that she should take a pregnancy test but she didn’t. In June 2025, she informed her mother, PW2 that she had missed her menses which prompted her to inform the appellant’s parents. That in July 2025, she failed to return home and instead spent the night at her friends home since she was stressed, which led to PW2 reporting her missing. The next day, she returned home and the matter was reported to the police where she was taken for medical examination that established that she was pregnant. This led to the arrest and subsequent arraignment of the appellant .
5. PW2, Constance Rehema Kaingu, the complainant’s mother, testified that the appellant used to be their rider and that on 15 April 2025 he picked the complainant on the understanding that he was taking her to church. The complainant did not return home that evening. The following day, the appellant called PW2 and informed her that he was with the complainant. The appellant’s mother, PW3 later informed PW2 that the complainant was at their home. After about two weeks, the appellant escorted the complainant back home. PW2 later reported the matter to the police after the complainant failed to return home sometimes in July 2025 but she later went home the next day. Following the report, she was taken to the hospital where it was discovered that she was pregnant.
6. PW3, Khadija Mwaka Mvumba, the appellant’s mother, testified that she saw the complainant at the appellant’s house. She stated that the appellant knew the complainant and knew that she was a student. She further testified that there was no bad blood between the complainant and the appellant or between their families.
7. PW4, John Nyanje Emmanuel, the appellant’s father, testified that he saw the complainant near the appellant’s house and summoned the appellant. The complainant informed him that her mother knew that she was at their home. PW4 and PW3 later met the complainant’s mother, after which the appellant escorted the complainant back home.
8. PW5, Mwangolo Chigulu, a clinical officer at Mariakani Sub-County Hospital, examined the complainant on 2 July 2025 and established that she was 13 weeks pregnant, her hymen was absent, her sphincter muscles were loose and she had a sexually transmitted infection leading to a conclusion that there was vaginal penetration and she was pregnant. He produced the P3 form, treatment notes, laboratory request, lab results and obstetric ultrasound scan as evidence.
9. PW6, PC Lawrence Wambua Mutua, the investigating officer’s evidence was that on 1 July 2025 a report of a missing child was made by PW2.The complainant returned home the next day and was taken to the police station on 2 July 2025 . Upon interrogation, the complainant stated that she had ran away because she was pregnant and was stressed. A defilement report was then recorded, the complainant was issued with a P3 form, medical examination conducted and the appellant was later arrested after being identified by the complainant as responsible.
10. At the close of the persecution's case, the trial court held that a prima facie case had been proved and placed the appellant on his defence.
11. The appellant testified on oath without calling any witness. He denied defiling the complainant and stated that he used to take the complainant and her mother to church by motorcycle. He also contended that he was 15 years old which prompted the trial court to inquire into his age where a copy of his birth certificate was shown in court indicating that he was born on 27 November 2000 hence 24 years. The appellant nevertheless maintained that he was 15 years old.
12. At the close of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, found the appellant guilty, convicted him and sentenced him to 20 years imprisonment as aforestated.
Appeal
13. Aggrieved by the appellant filed the present appeal where he raised the following grounds:
i. That the trial court erred in fact and law by failing to consider that the appellant was 15 years of age and a minor.
ii. That the trial court erred in fact and law by failing to order a DNA test to confirm that he had committed the offence as required under section 36 of the Sexual Offences Act.
iii. That the trial court erred in fact and law by failing to consider that the appellant was unfairly targeted despite the fact that it was a consensual relationship.
iv. That the trial court erred in fact and law by failing to find that the appellant’s right to fair trial under Article 50 (2) (j) of the Constitution was violated when he was denied access to the prosecution case and when his defence was not considered.
v. That the trial court erred in fact and law by failing to find that the prosecution did not prove its case beyond reasonable doubt.
vi. That the trial court erred in fact and law by convicting the appellant without direct evidence in form of eye witnesses and based on hearsay.
vii. That the trial court erred in fact and law by shifting the burden of proof to the appellant.
viii. That the trial court erred in fact and law by convicting him against the weight of the evidence.
ix. That the trial court erred in fact and law by passing a sentence that was harsh and excessive.
Appellant’s submissions
14. The appeal was canvased by written submissions which were filed by both Parties. The appellant was represented by Ms M Ngari learned Counsel who filed written submission dated 30 April 2026 while the Respondent was represented by Ms Ngina Mutua learned Counsel who filed written submissions dated 30 April 2026.
15. The appellant submitted that the appellant was 15 years old at the time of sentencing while the complainant was 14 years old. He submitted that he was born on 27 November 2010 stating that PW3 his mother having testified that she was 35 years held and hence there was no way that the appellant was born in 2010. It was submitted that sexual intercourse between minors should not be criminalized but both should be treated as victims of the offence. It was argued that the appellant ought not to have been given a custodial sentence.
16. The appellant submitted that the trial court should have ordered for an age assessment test to ascertain the age of the appellant and that failure to do caused a grave miscarriage of justice.He cited the cases of Matibe vs Repbulic (2010) eKLR and CKW vs Republic (2014) eKLR in support of its argument.
17. It was further contended that it is necessary to call for a DNA test in order to conclusively ascertain that the appellant was responsible for the complainant’s pregnancy. The court was invited to invoke its powers under Section 358 (1) of the Criminal Procedure Code and order for a DNA test as additional evidence. The case of J ames Mwamba Mwandoe vs Republic (2016) eKLR was cited in support.
18. It was submitted that the appellant being a child was not accorded a fair trial by the failure to have an advocate assigned to him. The court was also called upon to consider the place of mandatory minimum sentences in view of their grave violation to fundamental human rights principles under Article 53 of the Constitution. The court was urged to reduce the sentence on account of the age of the appellant, ie 15 years.
Respondent’s submissions
19. The respondent opposed the appeal. It was submitted that the prosecution proved the three ingredients of defilement, namely penetration, age of the complainant and identification of the appellant. The respondent argued that DNA testing is not a mandatory requirement to prove defilement and relied on the cases of HWN vs Republic (2023) KECA 295 (KLR) and Robert Mutungi Muumbi vs Republic (2015) eKLR.
20. It was further submitted that the complainant’s age was proved by a birth certificate she showed that she was born on 15 April 2011, that the appellant was positively identified by recognition, and that section 124 of the Evidence Act allows a conviction in a sexual offence on the evidence of the victim alone where the court believes the victim and records reasons for that belief.
21. It was also submitted that the appellant attempted to mislead the court that he was 15 years old during defence hearing but this was rebutted by his birth certificate which showed that he was born on 27 November 2010 and hence 25 years at the time of commission of the offence.
22. The Respondent submitted that the appellant had a duty to prove allegations of violation of fundamental rights and freedoms. See Anarita Karimi Njiru vs Republic (1976-1980)KLR 1272, Matiba vs AG (1990) KLR 666 and Leonard Otieno vs Airtell Kenya Ltd (2018) eKLR . However, no evidence was tendered to show violation of constitutional rights.
23. The Respondent further submitted that all ingredients of the offence being age of the victim, positive identification of the perpetrator and proof of penetartion were proved beyond reasonable doubt. Reliance was placed on the cases of George Opondo Olunga vs Republic (2016) eKRL and Daisy Chepkoech vs Republic (2022) eKLR.
24. On sentence, the respondent submitted that section 8 (3) of the Sexual Offences Act prescribes a sentence of not less than twenty years imprisonment and that the sentence imposed by the trial court was lawful.
Analysis and determination
25. 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 Republic (2013) eKLR.
26. The Court of Appeal in Kiilu & Another Vs Republic (2005) 1 KLR 174 stated that 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, while making allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.
27. The appellant was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The said section provides;
“ 8 (1) a person who commits an act which causes penetration with a child is guilty of the offence termed defilement.
(2)…………
(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.
28. The ingredients of the offence of defilement are proof of penetration, proof that the complainant was a child, and positive identification of the perpetrator. See Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013 and George Opondo Olunga Vs Republic [2016] eKLR.
29. Drawing from the above, the issues for determination are as follows:
i. Whether the offence of defilement was proved beyond reasonable doubt
ii. Whether the failure to conduct DNA testing was fatal to the prosecution case
iii. Whether the appellant’s right to fair trial under Article 50 (2) of the Constitution was violated
iv. Whether the sentence was unlawful, harsh or excessive
Whether the offence of defilement was proved beyond reasonable doubt
30. On penetration, 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. Genital organs are defined to include the whole or part of male or female genital organs and, for purposes of the Act, include the anus.
31. The appellant contended that there were no eye witnesses to prove the case against him and that his conviction was based on hearsay.
32. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Criminal Appeal No. 35 of 1995.
33. The court of appeal in K assim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
34. PW1 testified that in November 2024, the appellant took her to his house at Mwabayanyundo and had sexual intercourse with her by inserting his penis into her vagina. Again, on 15 April 2025, the appellant picked her from home on the pretext that he would take her to church but instead took her to his house where she stayed for about two weeks and they had sexual intercourse daily. In June 2025 she discovered that she was pregnant and identified the appellant as responsible.
35. Her evidence was corroborated PW2 her mother who testified that the appellant was their rider and she was at home on 15 April 2025 when the appellant picked the complainant on the understanding that he was taking her to church but she did not return home that evening. The following day, the appellant called PW2 and informed her that he was with the complainant. The appellant’s mother, PW3 later informed PW2 that the complainant was at their home. After about two weeks, the appellant escorted the complainant back home. PW3 and PW4 the appellant’s mother and father respectively, confirmed that indeed they saw the complainant staying with the appellant and even contacted PW2. This evidence was not rebutted.
36. PW5 the clinical officer examined the complainant and established her hymen was absent, she she had loose sphincter muscles and was 13 weeks pregnant. The court finds that the complainant's evidence was direct, consistent and duly corroborated by witness testimonies as well as medical evidence leaving no doubt that there was penetration.
Whether the failure to conduct DNA testing was fatal to the prosecution case
37. he appellant submitted that DNA which would have conclusively determined if he had committed the offence was not undertaken and that the failure thereof had negatively impacted the decision to his detriment. He urged the court to invoke its powers under Section 358 (1) of the Criminal Procedure Code to order that a DNA be conducted and remit the case to the trial court for purposes of collecting the said evidence.
38. The requirement of DNA testing in sexual offences cases is addressed in Section 36 of the Act. The said Section provides:
“36. (1) Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence”.
39. The question for determination is whether the failure to conduct a DNA test is fatal to the prosecution’s case. Section 36 (1) of the Sexual Offences Act is not couched in mandatory terms but grants discretion to the court to order for forensic or other scientific testing, including DNA for purposes of obtaining additional evidence to link a party to the offence. That provision does not oust the provisions of Section 124 of the Evidence Act which remains applicable to this case.
40. The court of appeal in the case of Williamson Sowa Mbwanga Vs Republic (2016) eKLR held:
“As regards the first ground of appeal, it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred V. Uganda, Cr. App. No. 139 of 2001)”.
41. The absence of DNA does not absolve the appellant from the allegations. The court having considered the evidence on record, finds that penetration was proved beyond reasonable doubt.
42. On the issue of age, 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.
43. The High Court in Kamau vs 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.”
44. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vs Republic Criminal Appeal No. 21 of 2015 [2017] .
45. The complainant testified that she was 14 years and produced a birth certificate showing that she was born on 15 April 2011. Her testimony was corroborated by PW2. The offence was committed on diverse dates between November 2024 and 1 July 2025, meaning that she was between 13 and 14 years old at the material time and hence a child within the meaning of the Sexual Offences Act.
46. On identification of the appellant as the perpetrator, the offence occurred over a length of time and the complainant positively identified the appellant as the perpetrator. The two were well known to each other, a fact that is not disputed by any party. PW2, PW3 and PW4 confirmed and corroborated the complainant's testimony through their evidence that the appellant who was a motor cycle rider took away the complainant on 15 April 2025, lived with her for two weeks before she returned home. This placed him in the scene and gave credence to the complainant’s evidence. The court finds that identification was proved by recognition.
47. The court has considered the appellant's defence and finds that it did not displace the finding in any of ingredients. Most of the appellant’s testimony corroborated the complainant’s save for the fact that he denied committing the offence. Evidence points to a consensual relationship that was in the knowledge of the parents of both the complainant and appellant. The court finds that all ingredients of the offence were proved beyond reasonable doubt.
Whether the appellant’s right to fair trial under Article 50 (2) (h) and (j) of the Constitution was violated
48. The appellant in his grounds of appeal averred that his right to fair trial as guaranteed under Article 50 (2) (j) was violated when he was denied access to the prosecution evidence and his defence was not considered. In his submissions, he contended that being a child, he was denied legal representation despite the possibility of a lengthy sentence which resulted in violation of his constitutional right to legal representation.
49. Article 50 of the Constitution guarantees fair hearing and fair trial a violation of which will lead to the various remedies that include quashing of convictions, invalidation of proceedings, or exclusion tainted evidence, acquittal where the breach is severe enough to compromise the entire trial process, or in limited cases, an order for a retrial. See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR).
50. his court is enjoined to interrogate and resolve any allegations of violation of constitutional rights by dint of Article 165 of the Constitution. If established, such violations can alter the course of proceedings. On the first allegation, that is, whether the appellant was denied access to evidence by the prosecution, Article 50 (2) (j) of the Constitution provides that every accused person has a right to fair trial which includes the right to be informed in advance of the evidence the prosecution intents to rely on, and to have reasonable access to it.
51. The record of proceedings show that on 23 July 2025 immediately after taking plea, the prosecution informed the court that he had supplied the appellant with a copy the charge sheet and the appellant confirmed receipt thereof. On 6 August 2025, the prosecution informed the court that it had supplied the appellant with witness statements and other medical documents and the appellant confirmed receipt thereof. The trial commenced one month later on 2 September 2025 when PW1 testified and the appellant informed the court he was ready to proceed. At no stage of the proceedings did he raise the issue or object that he had not been supplied with any document relied upon. The court finds this allegation lacks merit and is dismissed.
52. On the second issue, the appellant avers that he was a minor aged 15 years and ought to have been provided legal representation at public expense. It was also contended that the court should have called for additional evidence to ascertain the age of the appellant. The record of proceedings show that the age of the appellant was determined during defence hearing where he was shown a copy of his birth certificate which showed he was born on 27 November 2000. He did not rebut this fact or present any evidence to show otherwise. The court finds that on the basis of the evidence placed before it, the trial court was satisfied as to the age of the appellant and did not need to make further inquiries on the matter.
53. On whether he suffered prejudice due to lack of legal representation, the right to state funded legal representation guaranteed under Article 50(2)(h) of the Constitution and operationalized by the Legal Aid Act 2016, would arise where substantial injustice would otherwise result. To the courts mind, the right is not automatic but dependent on whether substantial injustice would otherwise occur if an accused is not represented. The issue for determination therefore is, what is the meaning of substantial injustice?
54. The Supreme Court, in Republic vs Chengo & 2 others (2017) KESC 15 (KLR) held that in determining whether substantial injustice would be suffered in criminal matters, the court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include the seriousness of the offence, severity of the sentence, the ability of the accused person to pay his own legal representation, whether the accused is a minor, the literacy of the accused and complexity of the charge against the accused. The list is not exhaustive and each case is to be determined based on its own peculiar circumstances.
55. In this case, in determining the question of whether the appellant is likely to have suffered substantial injustice due to lack of state funded representation, the court has considered the complexity of the case and whether the appellant was able to follow the proceeding before the trial court and defend himself. First, the record shows that the appellant was advised of his right to legal representation and granted time to obtain counsel but failed to do so. He later informed the court that he was ready to proceed.
56. Secondly, whereas the sentence is severe in view of the nature of the offence, the case was not complex at all. It was mainly based on issues of fact which were directly within the appellant’s knowledge. The witnesses testified on questions of fact and the documents were voluminous or not complex at all. A perusal of the record of the trial court showed that the appellant actively participated in the trial and cross- examined all the witnesses. It was therefore not evident or apparent that he suffered any substantial injustice that would require interference of the court.
57. The court finds no evidence to support the contention of violation of constitutional rights as alleged.
Whether the sentence was unlawful, harsh or excessive
58. The appellant was sentenced to twenty (20) years imprisonment. Section 8 (3) of the Sexual Offences Act provides that a person who commits the 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.
59. Sentencing is an exercise of discretion by the trial court and an appellate court will not interfere with a sentence unless the sentence is illegal, based on a wrong principle, or is manifestly harsh or excessive in the circumstances. See Bernard Kimani Gacheru Vs Republic (2002) eKLR and Wanjema Vs Republic (1971)EA 493.
60. The Supreme Court in Muruatetu & another Vs Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) clarified that the decision in Muruatetu did not invalidate mandatory or minimum sentences in the Sexual Offences Act or any other statute. The Supreme Court later settled the issue in Republic Vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), holding that the mandatory minimum sentences under the Sexual Offences Act are lawful and that courts have no discretion to impose a sentence below the prescribed minimum.
61. The sentence of twenty (20) years imprisonment is the statutory minimum and lawful. The trial court did not have any discretion to award a lower sentence and this court finds that the sentence is proper and lawful.
Final Orders
62. In light of the above, the court finds the appeal against conviction and sentence lacks merit and is accordingly dismissed.
Dated, Signed and Delivered Virtually at Nairobi on this 23rd day of July 2026
JOSEPH KIPKOECH BIOMDO,
JUDGE