1. Paul Chege Kimani, the appellant herein, was convicted of the offence of defilement of a girl contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence were that on the 28th December 2021, at Mwihoti village in Kinangop within Nyandarua County intentionally caused his penis to penetrate the vagina of S.W.N., a child aged seventeen years.
3. The appellant was sentenced to fifteen years' imprisonment. He has appealed against both conviction and sentence. He was in person and raised the following grounds of appeal:
a) The learned trial magistrate erred in finding that the prosecution had proved its case beyond a reasonable doubt.
b) The trial court erred in law by failing to notice that the appellant reasonably believed that the complainant had granted consent, and that she had the capacity to grant the said consent, and that the appellant believed she was of full age and had the capacity to contract a marriage.
c) The complaint did not report the alleged incident of her own volition immediately.
d) The learned trial magistrates erred in law and fact in failing to consider, and failed to consider, and or give reasons why she disregarded the appellant's defence since the appellant reasonably believed that the complaint was an adult.
4. The state, represented by prosecution counsel Odero Vena, opposed the appeal. It argued that the prosecution had met the required standards of proof and that the appeal was without merit.
5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, keeping in mind that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno vs the Republic [1972] E. A 32 to guide my decision-making process.
6. Section 8(1) of the Sexual Offences Act defines defilement in the following terms:
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
An offence of defilement is established when the prosecution proves the following elements against an accused.
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR when Joel Ngugi J. said:
Going by this definition of defilement, I agree with Mr. Mwenda on the issues the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
These are the ingredients that the prosecution must prove against an accused person.
7. The copy of the birth certificate submitted as evidence shows that S.W.N. was born on June 16, 2004. As of December 28, 2021, she was 17 years and 6 months old. Therefore, the prosecution has established the complainant's age to the required standard.
8. S.W.N. (PW1) testified that the appellant was her friend. She stated that on the relevant day, they had sexual intercourse on a farm. Subsequently, it emerged that she was pregnant. She later gave birth.
9. A DNA test confirmed that the appellant was the father of the complainant’s child.
10. At the trial, Paul Chege Kimani, the appellant, denied any involvement in the offence. However, in the grounds of appeal, he contended that he reasonably believed the complainant had consented and that she was an adult.
11. Section 8 (5) of the Sexual Offences Act provides as follows:
It is a defence to a charge under this section if—
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
12. The appellant did not raise this defence during the hearing. Had he done so, the trial magistrate might have more effectively determined whether, considering the complainant's age, a reasonable person could have believed she was an adult. While the sexual intercourse was consensual, the complainant did not have the capacity to give consent.
13. The conviction was well-founded and supported by the evidence.
14. Section 8 (4) of the Sexual Offences Act provides:
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.
15. The appellant was sentenced to serve the minimum prescribed sentence.
16. The appeal, therefore, lacks merit and is accordingly dismissed.
Delivered and signed at Nyandarua, this 23rd day of April 2026
2. The particulars of the offence were that on the 28th December 2021, at Mwihoti village in Kinangop within Nyandarua County intentionally caused his penis to penetrate the vagina of S.W.N., a child aged seventeen years.
3. The appellant was sentenced to fifteen years' imprisonment. He has appealed against both conviction and sentence. He was in person and raised the following grounds of appeal:
a) The learned trial magistrate erred in finding that the prosecution had proved its case beyond a reasonable doubt.
b) The trial court erred in law by failing to notice that the appellant reasonably believed that the complainant had granted consent, and that she had the capacity to grant the said consent, and that the appellant believed she was of full age and had the capacity to contract a marriage.
c) The complaint did not report the alleged incident of her own volition immediately.
d) The learned trial magistrates erred in law and fact in failing to consider, and failed to consider, and or give reasons why she disregarded the appellant's defence since the appellant reasonably believed that the complaint was an adult.
4. The state, represented by prosecution counsel Odero Vena, opposed the appeal. It argued that the prosecution had met the required standards of proof and that the appeal was without merit.
5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, keeping in mind that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno vs the Republic [1972] E. A 32 to guide my decision-making process.
6. Section 8(1) of the Sexual Offences Act defines defilement in the following terms:
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
An offence of defilement is established when the prosecution proves the following elements against an accused.
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR when Joel Ngugi J. said:
Going by this definition of defilement, I agree with Mr. Mwenda on the issues the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
These are the ingredients that the prosecution must prove against an accused person.
7. The copy of the birth certificate submitted as evidence shows that S.W.N. was born on June 16, 2004. As of December 28, 2021, she was 17 years and 6 months old. Therefore, the prosecution has established the complainant's age to the required standard.
8. S.W.N. (PW1) testified that the appellant was her friend. She stated that on the relevant day, they had sexual intercourse on a farm. Subsequently, it emerged that she was pregnant. She later gave birth.
9. A DNA test confirmed that the appellant was the father of the complainant’s child.
10. At the trial, Paul Chege Kimani, the appellant, denied any involvement in the offence. However, in the grounds of appeal, he contended that he reasonably believed the complainant had consented and that she was an adult.
11. Section 8 (5) of the Sexual Offences Act provides as follows:
It is a defence to a charge under this section if—
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
12. The appellant did not raise this defence during the hearing. Had he done so, the trial magistrate might have more effectively determined whether, considering the complainant's age, a reasonable person could have believed she was an adult. While the sexual intercourse was consensual, the complainant did not have the capacity to give consent.
13. The conviction was well-founded and supported by the evidence.
14. Section 8 (4) of the Sexual Offences Act provides:
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.
15. The appellant was sentenced to serve the minimum prescribed sentence.
16. The appeal, therefore, lacks merit and is accordingly dismissed.
Delivered and signed at Nyandarua, this 23rd day of April 2026