JUDGMENT
(Being an Appeal against the Judgment of Chief Magistrate’s Court at Malindi Hon. Irene Thamara (RM) delivered on 23 rd November, 2023)
1. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with sub-section (3) of the Sexual Offences Act. The particulars were that on diverse dates between November, 2021 and 15 th March, 2022 at Yambe area Malanga Sub-Location Langobaya location Langobaya Division in Malindi Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate into the vagina of L.K.M a girl aged 15 years.
2. The Appellant faced an alternative charge of committing an indecent act contrary to Section 11(1) of the Sexual Offence Act. The particulars were that on diverse dates between November, 2021 and 15 th March, 2022 at Yembe area Malanga Sub-location Langobaya location Langobaya Division in Malindi Sub County within Kilifi County intentionally and unlawfully committed an indecent act by touching the vagina of L.K.M a girl aged 15 years using his penis.
3. The appellant pleaded not guilty to the charges and the matter proceeded for hearing with the prosecution calling four (4) witnesses. The Appellant was placed on his defence. He gave unsworn statement and called one witness.
4. In a judgment delivered on 23 rd November, 2023, the trial magistrate 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 accordingly convicted him and proceeded to sentence him to serve fifteen (15) years imprisonment.
5. The Appellant aggrieved by the conviction and sentence of the trial court he preferred this appeal. He raised three grounds of appeal to wit:
a) That the learned trial magistrate erred in both law and facts by failing to appreciate that the prosecution did not proof their case beyond reasonable doubt;
b) That the learned trial magistrate erred in both law and facts by failing to note that prosecution witnesses had fabrication and inconsistency in their evidence;
c) That the learned trial magistrate erred in both law and facts by failing to appreciate that Article 50 and 52 of the Constitution were violated.
Prosecution case
6. The complainant who testified as PW1 after voire dire examination said that in November, 2021 she had a wife-husband relationship with the Appellant having met sometimes in October, 2021. She said on several occasions the Appellant lured her to his house and they had sex. She said they had sex for three days. On the occasions she went to the appellant’s house she was lying to her mother that she was going to the Yembe. It is during this time that the appellant’s mother went and told her mother who came and took her home. The matter was then reported to the police. She was taken to Malindi Sub County hospital for treatment. She said she had known the appellant for months and she pointed at him in court.
7. PW2 the mother of the complainant testified that the complainant went missing for three days. She went searching for her on 23 rd February, 2022. After three days the Appellant’s father and mother went to her house and informed her that the complainant had been seen at their home. She was told that the complainant was sick and she went for her. When she went to the appellant’s parents’ home, she found the complainant and the appellant in the house. She reported the incident to the local administration who advised her to report the matter to the police. After reporting to the police, she was advised to take the complainant to hospital for medical examination.
8. PW3 Dr. Moses Rimba of attached at Malindi Sub County Hospital testified as medical examination he conducted on the complainant. He said that the complainant was brought to the hospital with history of having had sexual relationship with a man she lived with. Upon examination the complainant was found not to be pregnant. She was not a virgin. He concluded that the complainant had been penetrated.
9. PW4 investigated the matter. He said on 22 nd February, 2022 the complainant was brought to the police station accompanied by her parents. She explained that the appellant had approached her and they had sex. He established that the appellant wooed the complainant who was aged 15 years to his home. He issued her with P3 Form and referred her to Malindi Sub County hospital. After the P3 Form was filled he recorded statements from the witnesses and later arrested the appellant.
Defence case
10. The appellant gave unsworn statement. He said that on 23 rd February, 2022 the complainant’s grandmother came to their and told him that she had heard that he was sleeping with the complainant. He did not answer to her. Shortly he met with the complainant’s grandmother along the road. She told him to leave the complainant as she had a husband. He left her alone. Later on, 14 th March, 2022 the complainant came to their home telling him that she had been chased away form home. He allowed her to sleep at their home. The following day he went to the area Assistant Chief and told him about the complainant being found at their home. The Assistant Chief wrote them a letter. Later they were taken to Langobaya police station where he was arrested. He said that the complainant went to her husband.
11. DW2 testified the complainant was a neighbour who used to get boda lift from the appellant. Following the persistent lift from the appellant, the complainant’s parents chased her away telling her to go to the appellant’s home.
12. When she went to the appellant’s home she told the appellant that she had been chased away because of the lifts he had been giving her. She was allowed to spend the night at the appellant’s home.
13. In the morning the appellant took her to the area chief to know why she had been chased away. The appellant said he had no relationship with the complainant. A week after the appellant was arrested. He contented that the parents of the complainant were not happy when the appellant failed to marry the complainant.
Submissions
14. The Appellant relied on his undated submissions filed in court. He argued that the age of the complainant was not properly proved. His contention is that neither the complainant or PW2 identified the birth certificate which was produced in court by PW3.
15. He further argued that penetration was never proved. The basis of his argument is that since the defilement is alleged to have taken place on diverse dates and the investigating officer ought to have specified the exact date he penetrated the complainant.
16. He also challenged the medical evidence which indicated that the hymen was broken because the examination was done many months after the alleged defilement. As such the medical evidence could not have corroborated the evidence adduced by the complainant.
17. The appellant also challenged the trial court finding on identification. He argued that the complainant’s evidence on identification was marred as she did not state where they had sex on the various occasions.
18. The appellant also argued that the prosecution case was marred by inconsistencies and contradictions. He argued that the charge sheet was at variance with the evidence adduced.
19. He pointed out that the charge sheet stated that the offence was committed on diverse dates between November, 2021 and 15 th March, 2022 whereas the testimony of the complainant talked about five dates to wit, November, 2021, January, 2022, 5 th January, 2021 and October, 2021.
20. He argued that the evidence of PW2 did not talk of any date of the alleged offence. He also alluded to the contradiction of the dates of the alleged offence on the evidence of the investigating officer.
21. The respondent in the submissions dated 18 th November, 2025 supported the conviction maintaining that all the ingredients of the offence of defilement to wit, age of the complainant, proof of penetration and positive of identification of the perpetrator were duly proved as required.
Analysis and determination.
22. It is trite that the duty of the first appellate court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own independent decision of course warning itself that it did not have the benefit of hearing and seeing the witnesses testify. This principle was laid down in the case of Okeno vs Republic (1972) E.A 32 where the court held:
“All this has been explained time and time again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage and opportunity of hearing and seeing the witnesses testify."
23. Further to the foregoing, it must also be born in mind that it is the duty of the prosecution to prove charges against an accused beyond reasonable doubt. This is a cardinal principle of criminal law which need not to be overemphasized. It has been restated in numerous authorities (See Stephen Nguli Mulili vs Republic (2014) e KLR).
24. With the foregoing background I will consider whether the conviction of the appellant is supported by the evidence adduced by the prosecution. In doing so it is prudent that I set out the ingredients of the offence of defilement.
25. The offence of defilement is creature of Section 8(1) od the Sexual Offence Act which provides:
“Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
26. In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 the court stated:
“That the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.”
27. In this appeal the appellant attacked the findings of the trial court that the age of the complainant was not proved as required. In the case of Musyoki Mwakavi vs Republic (2014) e KLR the court held that:
“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian or common sense…”
28. The gist of the appellant’s argument is that neither the complainant or her mother identified the birth certificate produced in court by PW3. That may be correct from the record of the trial court.
29. However, the complainant herself told the court that she was aged 15 years at the time of the offence. This is corroborated by her mother who also said the complainant was aged 15 years. Further the birth certificate produced in court by PW3 showed that the complainant was born on 30 th September, 2007.
30. The trial court cannot therefore be faulted for making a finding that at the time of the offence the complainant was aged 15 years. The mere fact that the complainant and her mother did not identified the birth certificate as alleged by the appellant does not negate the evidence of the complainant herself, her mother and the birth certificate which all points that the complainant was aged 15 years.
31. The appellant further attacked the finding of the trial court on penetration. Penetration is defined under Section 2 of the Sexual Offences Act to mean:
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
32. The appellant attacked the finding of the trial court on penetration arguing that it was not clear which date he penetrated the complainant in view of the allegations in the charge sheet that the offence was committed on diverse dates.
33. The trial court correctly found that the complainant told the court that she went to the appellant’s home where she stayed for three days. During those days she said she had sex with the appellant. Her evidence was corroborated by the medical evidence produced by PW3 who concluded that there was vaginal penetration into the complainant.
34. On the identification of the appellant as the assailant, it is common evidence that the complainant and the appellant were neighbours. It is also common evidence that the appellant used to give the complainant lift in his motor cycle. It is also in evidence that the complainant when chased away from home by her parents she went to the appellant’s home.
35. The sum total of the foregoing is that the appellant was positively identified as the perpetrator and the trial court cannot be faulted.
36. Regarding the sentence, the appellant was charged pursuant to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The sentence provided for under subsection (3) if fifteen years and I have no reason disturb the sentence imposed.
37. The upshot of the foregoing is that the appeal herein is dismissed and the finding of the trial court on both the conviction and sentence is upheld. Right of appeal 14 days.
Dated, signed and delivered virtually this 26 th day of May, 2026
In the presence of
1. Appellant virtually
2. Ms. Mutua virtually
3. Ms. Millicent Otwo court assistant physically
2
(Being an Appeal against the Judgment of Chief Magistrate’s Court at Malindi Hon. Irene Thamara (RM) delivered on 23 rd November, 2023)
1. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with sub-section (3) of the Sexual Offences Act. The particulars were that on diverse dates between November, 2021 and 15 th March, 2022 at Yambe area Malanga Sub-Location Langobaya location Langobaya Division in Malindi Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate into the vagina of L.K.M a girl aged 15 years.
2. The Appellant faced an alternative charge of committing an indecent act contrary to Section 11(1) of the Sexual Offence Act. The particulars were that on diverse dates between November, 2021 and 15 th March, 2022 at Yembe area Malanga Sub-location Langobaya location Langobaya Division in Malindi Sub County within Kilifi County intentionally and unlawfully committed an indecent act by touching the vagina of L.K.M a girl aged 15 years using his penis.
3. The appellant pleaded not guilty to the charges and the matter proceeded for hearing with the prosecution calling four (4) witnesses. The Appellant was placed on his defence. He gave unsworn statement and called one witness.
4. In a judgment delivered on 23 rd November, 2023, the trial magistrate 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 accordingly convicted him and proceeded to sentence him to serve fifteen (15) years imprisonment.
5. The Appellant aggrieved by the conviction and sentence of the trial court he preferred this appeal. He raised three grounds of appeal to wit:
a) That the learned trial magistrate erred in both law and facts by failing to appreciate that the prosecution did not proof their case beyond reasonable doubt;
b) That the learned trial magistrate erred in both law and facts by failing to note that prosecution witnesses had fabrication and inconsistency in their evidence;
c) That the learned trial magistrate erred in both law and facts by failing to appreciate that Article 50 and 52 of the Constitution were violated.
Prosecution case
6. The complainant who testified as PW1 after voire dire examination said that in November, 2021 she had a wife-husband relationship with the Appellant having met sometimes in October, 2021. She said on several occasions the Appellant lured her to his house and they had sex. She said they had sex for three days. On the occasions she went to the appellant’s house she was lying to her mother that she was going to the Yembe. It is during this time that the appellant’s mother went and told her mother who came and took her home. The matter was then reported to the police. She was taken to Malindi Sub County hospital for treatment. She said she had known the appellant for months and she pointed at him in court.
7. PW2 the mother of the complainant testified that the complainant went missing for three days. She went searching for her on 23 rd February, 2022. After three days the Appellant’s father and mother went to her house and informed her that the complainant had been seen at their home. She was told that the complainant was sick and she went for her. When she went to the appellant’s parents’ home, she found the complainant and the appellant in the house. She reported the incident to the local administration who advised her to report the matter to the police. After reporting to the police, she was advised to take the complainant to hospital for medical examination.
8. PW3 Dr. Moses Rimba of attached at Malindi Sub County Hospital testified as medical examination he conducted on the complainant. He said that the complainant was brought to the hospital with history of having had sexual relationship with a man she lived with. Upon examination the complainant was found not to be pregnant. She was not a virgin. He concluded that the complainant had been penetrated.
9. PW4 investigated the matter. He said on 22 nd February, 2022 the complainant was brought to the police station accompanied by her parents. She explained that the appellant had approached her and they had sex. He established that the appellant wooed the complainant who was aged 15 years to his home. He issued her with P3 Form and referred her to Malindi Sub County hospital. After the P3 Form was filled he recorded statements from the witnesses and later arrested the appellant.
Defence case
10. The appellant gave unsworn statement. He said that on 23 rd February, 2022 the complainant’s grandmother came to their and told him that she had heard that he was sleeping with the complainant. He did not answer to her. Shortly he met with the complainant’s grandmother along the road. She told him to leave the complainant as she had a husband. He left her alone. Later on, 14 th March, 2022 the complainant came to their home telling him that she had been chased away form home. He allowed her to sleep at their home. The following day he went to the area Assistant Chief and told him about the complainant being found at their home. The Assistant Chief wrote them a letter. Later they were taken to Langobaya police station where he was arrested. He said that the complainant went to her husband.
11. DW2 testified the complainant was a neighbour who used to get boda lift from the appellant. Following the persistent lift from the appellant, the complainant’s parents chased her away telling her to go to the appellant’s home.
12. When she went to the appellant’s home she told the appellant that she had been chased away because of the lifts he had been giving her. She was allowed to spend the night at the appellant’s home.
13. In the morning the appellant took her to the area chief to know why she had been chased away. The appellant said he had no relationship with the complainant. A week after the appellant was arrested. He contented that the parents of the complainant were not happy when the appellant failed to marry the complainant.
Submissions
14. The Appellant relied on his undated submissions filed in court. He argued that the age of the complainant was not properly proved. His contention is that neither the complainant or PW2 identified the birth certificate which was produced in court by PW3.
15. He further argued that penetration was never proved. The basis of his argument is that since the defilement is alleged to have taken place on diverse dates and the investigating officer ought to have specified the exact date he penetrated the complainant.
16. He also challenged the medical evidence which indicated that the hymen was broken because the examination was done many months after the alleged defilement. As such the medical evidence could not have corroborated the evidence adduced by the complainant.
17. The appellant also challenged the trial court finding on identification. He argued that the complainant’s evidence on identification was marred as she did not state where they had sex on the various occasions.
18. The appellant also argued that the prosecution case was marred by inconsistencies and contradictions. He argued that the charge sheet was at variance with the evidence adduced.
19. He pointed out that the charge sheet stated that the offence was committed on diverse dates between November, 2021 and 15 th March, 2022 whereas the testimony of the complainant talked about five dates to wit, November, 2021, January, 2022, 5 th January, 2021 and October, 2021.
20. He argued that the evidence of PW2 did not talk of any date of the alleged offence. He also alluded to the contradiction of the dates of the alleged offence on the evidence of the investigating officer.
21. The respondent in the submissions dated 18 th November, 2025 supported the conviction maintaining that all the ingredients of the offence of defilement to wit, age of the complainant, proof of penetration and positive of identification of the perpetrator were duly proved as required.
Analysis and determination.
22. It is trite that the duty of the first appellate court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own independent decision of course warning itself that it did not have the benefit of hearing and seeing the witnesses testify. This principle was laid down in the case of Okeno vs Republic (1972) E.A 32 where the court held:
“All this has been explained time and time again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage and opportunity of hearing and seeing the witnesses testify."
23. Further to the foregoing, it must also be born in mind that it is the duty of the prosecution to prove charges against an accused beyond reasonable doubt. This is a cardinal principle of criminal law which need not to be overemphasized. It has been restated in numerous authorities (See Stephen Nguli Mulili vs Republic (2014) e KLR).
24. With the foregoing background I will consider whether the conviction of the appellant is supported by the evidence adduced by the prosecution. In doing so it is prudent that I set out the ingredients of the offence of defilement.
25. The offence of defilement is creature of Section 8(1) od the Sexual Offence Act which provides:
“Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
26. In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 the court stated:
“That the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.”
27. In this appeal the appellant attacked the findings of the trial court that the age of the complainant was not proved as required. In the case of Musyoki Mwakavi vs Republic (2014) e KLR the court held that:
“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian or common sense…”
28. The gist of the appellant’s argument is that neither the complainant or her mother identified the birth certificate produced in court by PW3. That may be correct from the record of the trial court.
29. However, the complainant herself told the court that she was aged 15 years at the time of the offence. This is corroborated by her mother who also said the complainant was aged 15 years. Further the birth certificate produced in court by PW3 showed that the complainant was born on 30 th September, 2007.
30. The trial court cannot therefore be faulted for making a finding that at the time of the offence the complainant was aged 15 years. The mere fact that the complainant and her mother did not identified the birth certificate as alleged by the appellant does not negate the evidence of the complainant herself, her mother and the birth certificate which all points that the complainant was aged 15 years.
31. The appellant further attacked the finding of the trial court on penetration. Penetration is defined under Section 2 of the Sexual Offences Act to mean:
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
32. The appellant attacked the finding of the trial court on penetration arguing that it was not clear which date he penetrated the complainant in view of the allegations in the charge sheet that the offence was committed on diverse dates.
33. The trial court correctly found that the complainant told the court that she went to the appellant’s home where she stayed for three days. During those days she said she had sex with the appellant. Her evidence was corroborated by the medical evidence produced by PW3 who concluded that there was vaginal penetration into the complainant.
34. On the identification of the appellant as the assailant, it is common evidence that the complainant and the appellant were neighbours. It is also common evidence that the appellant used to give the complainant lift in his motor cycle. It is also in evidence that the complainant when chased away from home by her parents she went to the appellant’s home.
35. The sum total of the foregoing is that the appellant was positively identified as the perpetrator and the trial court cannot be faulted.
36. Regarding the sentence, the appellant was charged pursuant to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The sentence provided for under subsection (3) if fifteen years and I have no reason disturb the sentence imposed.
37. The upshot of the foregoing is that the appeal herein is dismissed and the finding of the trial court on both the conviction and sentence is upheld. Right of appeal 14 days.
Dated, signed and delivered virtually this 26 th day of May, 2026
In the presence of
1. Appellant virtually
2. Ms. Mutua virtually
3. Ms. Millicent Otwo court assistant physically
2