REPUBIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL APPEAL NO. E015 OF 2025
SAID RAMADHAN SAID alias BIROBIRO ………….…………APPELLANT
VERSUS
REPUBLIC …………………………………………..……………RESPONDENT
JUDGMENT
(Being an appeal from the Judgment and sentence of the magistrate’s court at Shanzu in Criminal SO Case No. E046 of 2024)
1. The Appellant herein was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act of 2006. The particulars were that on diverse dates between January 2024 and 15/3/2024 at Bamburi Fisheries area in Kisauni sub-county within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of M.A.O a girl child.
2. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act . The particulars were that on diverse dates between January 2024 and 15/3/2024 at Bamburi Fisheries area in Kisauni sub-county within Mombasa County intentionally and unlawfully caused his penis to touch the vagina of MAO a girl aged 14 years.
3. The appellant was convicted on the main count and sentenced to 20 years’ imprisonment.
4. The appellant was not satisfied with the trial court’s judgement and thus he preferred this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
a) That the learned honorable trial magistrate erred in law and fact for not considering that the charge sheet was in invariance with the evidence in record hence making it incurable defective under Section 134 of the Criminal procedure code.
b) That the learned honorable trial magistrate erred in law and fact for not realizing that the admission of the clinic card as part of the evidence was not legal reached besides its execution.
c) That the learned honorable trial magistrate erred in law and fact for not considering that the commission of the said event was executed out of requirement of Section 43 of the SOA.
d) The learned honorable trial magistrate erred in law and fact for not considering, the said minor whose age was not legal estableished had consent.
Prosecution’s case
6. PW1 Dr Gabriel Mugola told the court that he works at Coast General Hospital. He said that he had a PRC form for MAO. It was filled by nurse Priscilla M Chingundi on 15/3/24. PW1 filled the P3. The hymen was broken with an old scar. The anus had bruising at 12.00 and 11.00. The anal muscle was lose. The victim had a clear vaginal discharge. The documents were stamped on 3/6/2024. PW1 produced PRC form stamped on 3/6/2024 as PEXH-1. P3 form was produced as PEXH-2. The lab results were produced as PEXH-3.
7. PW2 MAO (minor) told the court under oath that she was born in November 2010. She said that she knows the accused person as she was his friend. They started their friendship in 2023. In January 2024 the appellant took him to an incomplete flat that was near her home. It was at night. The accused person asked her to sleep with him. She agreed and he removed her clothes and they had sex.
8. PW2 stated that the appellant also inserted his penis in her anus. She stated that the appellant just removed his pant. He went home and did not tell anyone about it. On 13/3/2024 the appellant called her from the window. He took her again to the same flat where they had sex the other time. When her mother came from work she asked her where she had come from. PW2 told her that she is coming from Said and she told her what had happened. Her mother told her they would go to the hospital the next day. She was then taken to Makadara and later to Bamburi Police station. she said that in the two times she was defiled there was light passing through the unfinished window. It was a moonlight and security lights that enabled her to see well. She pointed at the accused person in the dock.
9. On cross-examination she said that she does not recall the time of the offence. She knows it was at night. She had never slept with a woman before. She was not told by her mother to fix the appellant. She has never had a boyfriend. She said that it is true that she was to report to the parents when something bad happens. She said that it was 3 when her mother called her at night. She was not coerced to tell lies.
10. On 24/10/2024 PW3 Corporal Esther Fonde she said that she is the investigating officer in this case. She stated that Fellister Akumu came and reported that her daughter had been defiled. She said that she came home at 3.00 am she expected Margaret to open the door but she did not instead she came out from the behind door. She informed her that she was coming from her boyfriend’s place named Biro Biro. The mother waited for daybreak and went to the police station. The accused was arrested and taken to court. The Clinic card copy was MFI-4.
11. On 13/11/2024 PW3 testified that the mother of the minor could not be traced as she had switched off her phone. She produced the copy of clinic card as the mother to the complainant who has the document cannot be traced. Appellant had no objection and the application was allowed by the court. She said that the clinic card shows that the minor was born on 2/11/2009. At the time of the offence she was 14 years old.
Defence case
12. DWI chose to keep quiet in his defense. He prayed for judgement date.
Analysis and Determination
13. This being the first appellate court, it is imperative that I must examine and analyze all the evidence adduced in the trial court afresh and arrive at my own independent finding and conclusions on both the facts and the law. This is the principle espoused in a plethora of cases including the case of Okeno v Republic [1972] EA 32 at 36 where the court held 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 (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424 .”
14. I have considered the record of appeal and the submissions by the appellant and the issues that arise for determination by this court are as follows: -
i. Whether the charge sheet was defective
ii. Whether the age of the minor was proved and if the minor had consent
i. Whether the charge sheet was defective
15. On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not. The Court of Appeal considered the ingredients necessary in a charge sheet and stated as follows in the case of Isaac Omambia vs Republic (1995) eKLR :-
“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”
16. A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53 , the Court of Appeal stated in YONGO V R, (1983) eKLR that: -
“ In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:
(i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,
(ii) when for such reason it does not accord with the evidence given at the trial.”
17. Further guidance is found in the case of Peter Sabem Leitu vs R CRA no. 482 of 2007 (UR) the Court of Appeal held: -
“The question therefore is, did this defect prejudice the appellant as to occasion any miscarriage of justice or a violation of his fundamental right to a fair trial? We think not. The charge sheet was clearly read out to the appellant and he responded. As such he was fully aware that he faced a charge of robbery with violence. The particulars in the charge sheet made clear reference to the offence of robbery with violence as well as the date the offence is alleged to have occurred. These particulars were also read out to the appellant on the date of taking plea. The fact that PW1 was not personally robbed and did not also witness the robbery did not in any way prejudice the appellant.”
18. Turning to the second limb as to whether the defect in the charge sheet is curable under Section 382 of the Criminal Procedure Code or not, we have had occasion to revisit and construe this section on our own. Section 382 of the Criminal Procedure Code provides: -
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
19. In the case of NJUGUNA V R, [2002] LLR NO. 3735 (CAK) the Court of Appeal in considering whether a defect in a charge sheet is fatal held: -
“We think, like the Learned Judges of the High Court did, that stating in a Charge Sheet a lesser amount than the amount which was actually stolen was no more than an irregularity in the Charge Sheet and it did not render the Charge Defective. It was an irregularity curable under the above quoted section of the Criminal Procedure Code and the Appellant did not point out to us any sort of prejudice which the irregularity could or did occasion to him .”
20. In light of the above and considering the charge sheet on record I find that the same contains a statement of the specific offence or offences with which the appellant was charged with together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. I hold that the charge sheet on record is in line with Section 134 of the Criminal procedure code hence this ground fails.
ii. Whether the age of the minor was proved and if the minor had consent
21. 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.”
22. Instantly, the minor testified that she was born in November 2010. The PRC form shows that the minor was born on 25/6/2010. The clinical card produced in evidence shows that the minor as born on 2/11/2009. The estimated age of the victim as at the time of the offence is 14 years based on the evidence on record.
23. The appellant raised an issue with the clinical card on record that the same is a photocopy and the court should not have relied on the same to determine the age of the victim.
24. Under Section 64 of the Evidence Act, Cap 80 , the contents of documents may be proved either by primary or by secondary evidence.
Section 64 of the Evidence Act provides: -
“The contents of documents may be proved either by primary or by secondary evidence.”
Section 66 (b) of the Evidence Act states that secondary evidence includes
“…. copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.”
Section 68 (1) (g) of the Evidence Act states that; -
“Secondary evidence may be given of the existence, condition or contents of a document…. When the original consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.”
25. From the evidence on record, it is not in dispute that the appellant herein raised no objection when the clinical card was marked for identification by the prosecution on 24/10/2024. Subsequently, on 13/11/2024 the appellant herein did not object to the production of the clinical card on record. In both instances he waived his right to cross-examine on the contents of the said document. He even elected to remain silent during defense case hearing hence he is estopped from claiming that the court cannot rely on the photocopy of the clinical card to ascertain the age of the minor.
26. Having found that the victim was a minor, it is crystal clear that a minor cannot have consensual sex with an adult hence I find that this ground has no merit.
27. The upshot of the above is that, I find that the appellant’s appeal has no merit and the same is dismissed.
28. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 25 TH DAY OF FEBRUARY 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPELLANT in person
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL APPEAL NO. E015 OF 2025
SAID RAMADHAN SAID alias BIROBIRO ………….…………APPELLANT
VERSUS
REPUBLIC …………………………………………..……………RESPONDENT
JUDGMENT
(Being an appeal from the Judgment and sentence of the magistrate’s court at Shanzu in Criminal SO Case No. E046 of 2024)
1. The Appellant herein was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act of 2006. The particulars were that on diverse dates between January 2024 and 15/3/2024 at Bamburi Fisheries area in Kisauni sub-county within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of M.A.O a girl child.
2. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act . The particulars were that on diverse dates between January 2024 and 15/3/2024 at Bamburi Fisheries area in Kisauni sub-county within Mombasa County intentionally and unlawfully caused his penis to touch the vagina of MAO a girl aged 14 years.
3. The appellant was convicted on the main count and sentenced to 20 years’ imprisonment.
4. The appellant was not satisfied with the trial court’s judgement and thus he preferred this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
a) That the learned honorable trial magistrate erred in law and fact for not considering that the charge sheet was in invariance with the evidence in record hence making it incurable defective under Section 134 of the Criminal procedure code.
b) That the learned honorable trial magistrate erred in law and fact for not realizing that the admission of the clinic card as part of the evidence was not legal reached besides its execution.
c) That the learned honorable trial magistrate erred in law and fact for not considering that the commission of the said event was executed out of requirement of Section 43 of the SOA.
d) The learned honorable trial magistrate erred in law and fact for not considering, the said minor whose age was not legal estableished had consent.
Prosecution’s case
6. PW1 Dr Gabriel Mugola told the court that he works at Coast General Hospital. He said that he had a PRC form for MAO. It was filled by nurse Priscilla M Chingundi on 15/3/24. PW1 filled the P3. The hymen was broken with an old scar. The anus had bruising at 12.00 and 11.00. The anal muscle was lose. The victim had a clear vaginal discharge. The documents were stamped on 3/6/2024. PW1 produced PRC form stamped on 3/6/2024 as PEXH-1. P3 form was produced as PEXH-2. The lab results were produced as PEXH-3.
7. PW2 MAO (minor) told the court under oath that she was born in November 2010. She said that she knows the accused person as she was his friend. They started their friendship in 2023. In January 2024 the appellant took him to an incomplete flat that was near her home. It was at night. The accused person asked her to sleep with him. She agreed and he removed her clothes and they had sex.
8. PW2 stated that the appellant also inserted his penis in her anus. She stated that the appellant just removed his pant. He went home and did not tell anyone about it. On 13/3/2024 the appellant called her from the window. He took her again to the same flat where they had sex the other time. When her mother came from work she asked her where she had come from. PW2 told her that she is coming from Said and she told her what had happened. Her mother told her they would go to the hospital the next day. She was then taken to Makadara and later to Bamburi Police station. she said that in the two times she was defiled there was light passing through the unfinished window. It was a moonlight and security lights that enabled her to see well. She pointed at the accused person in the dock.
9. On cross-examination she said that she does not recall the time of the offence. She knows it was at night. She had never slept with a woman before. She was not told by her mother to fix the appellant. She has never had a boyfriend. She said that it is true that she was to report to the parents when something bad happens. She said that it was 3 when her mother called her at night. She was not coerced to tell lies.
10. On 24/10/2024 PW3 Corporal Esther Fonde she said that she is the investigating officer in this case. She stated that Fellister Akumu came and reported that her daughter had been defiled. She said that she came home at 3.00 am she expected Margaret to open the door but she did not instead she came out from the behind door. She informed her that she was coming from her boyfriend’s place named Biro Biro. The mother waited for daybreak and went to the police station. The accused was arrested and taken to court. The Clinic card copy was MFI-4.
11. On 13/11/2024 PW3 testified that the mother of the minor could not be traced as she had switched off her phone. She produced the copy of clinic card as the mother to the complainant who has the document cannot be traced. Appellant had no objection and the application was allowed by the court. She said that the clinic card shows that the minor was born on 2/11/2009. At the time of the offence she was 14 years old.
Defence case
12. DWI chose to keep quiet in his defense. He prayed for judgement date.
Analysis and Determination
13. This being the first appellate court, it is imperative that I must examine and analyze all the evidence adduced in the trial court afresh and arrive at my own independent finding and conclusions on both the facts and the law. This is the principle espoused in a plethora of cases including the case of Okeno v Republic [1972] EA 32 at 36 where the court held 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 (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424 .”
14. I have considered the record of appeal and the submissions by the appellant and the issues that arise for determination by this court are as follows: -
i. Whether the charge sheet was defective
ii. Whether the age of the minor was proved and if the minor had consent
i. Whether the charge sheet was defective
15. On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not. The Court of Appeal considered the ingredients necessary in a charge sheet and stated as follows in the case of Isaac Omambia vs Republic (1995) eKLR :-
“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”
16. A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53 , the Court of Appeal stated in YONGO V R, (1983) eKLR that: -
“ In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:
(i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,
(ii) when for such reason it does not accord with the evidence given at the trial.”
17. Further guidance is found in the case of Peter Sabem Leitu vs R CRA no. 482 of 2007 (UR) the Court of Appeal held: -
“The question therefore is, did this defect prejudice the appellant as to occasion any miscarriage of justice or a violation of his fundamental right to a fair trial? We think not. The charge sheet was clearly read out to the appellant and he responded. As such he was fully aware that he faced a charge of robbery with violence. The particulars in the charge sheet made clear reference to the offence of robbery with violence as well as the date the offence is alleged to have occurred. These particulars were also read out to the appellant on the date of taking plea. The fact that PW1 was not personally robbed and did not also witness the robbery did not in any way prejudice the appellant.”
18. Turning to the second limb as to whether the defect in the charge sheet is curable under Section 382 of the Criminal Procedure Code or not, we have had occasion to revisit and construe this section on our own. Section 382 of the Criminal Procedure Code provides: -
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
19. In the case of NJUGUNA V R, [2002] LLR NO. 3735 (CAK) the Court of Appeal in considering whether a defect in a charge sheet is fatal held: -
“We think, like the Learned Judges of the High Court did, that stating in a Charge Sheet a lesser amount than the amount which was actually stolen was no more than an irregularity in the Charge Sheet and it did not render the Charge Defective. It was an irregularity curable under the above quoted section of the Criminal Procedure Code and the Appellant did not point out to us any sort of prejudice which the irregularity could or did occasion to him .”
20. In light of the above and considering the charge sheet on record I find that the same contains a statement of the specific offence or offences with which the appellant was charged with together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. I hold that the charge sheet on record is in line with Section 134 of the Criminal procedure code hence this ground fails.
ii. Whether the age of the minor was proved and if the minor had consent
21. 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.”
22. Instantly, the minor testified that she was born in November 2010. The PRC form shows that the minor was born on 25/6/2010. The clinical card produced in evidence shows that the minor as born on 2/11/2009. The estimated age of the victim as at the time of the offence is 14 years based on the evidence on record.
23. The appellant raised an issue with the clinical card on record that the same is a photocopy and the court should not have relied on the same to determine the age of the victim.
24. Under Section 64 of the Evidence Act, Cap 80 , the contents of documents may be proved either by primary or by secondary evidence.
Section 64 of the Evidence Act provides: -
“The contents of documents may be proved either by primary or by secondary evidence.”
Section 66 (b) of the Evidence Act states that secondary evidence includes
“…. copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.”
Section 68 (1) (g) of the Evidence Act states that; -
“Secondary evidence may be given of the existence, condition or contents of a document…. When the original consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.”
25. From the evidence on record, it is not in dispute that the appellant herein raised no objection when the clinical card was marked for identification by the prosecution on 24/10/2024. Subsequently, on 13/11/2024 the appellant herein did not object to the production of the clinical card on record. In both instances he waived his right to cross-examine on the contents of the said document. He even elected to remain silent during defense case hearing hence he is estopped from claiming that the court cannot rely on the photocopy of the clinical card to ascertain the age of the minor.
26. Having found that the victim was a minor, it is crystal clear that a minor cannot have consensual sex with an adult hence I find that this ground has no merit.
27. The upshot of the above is that, I find that the appellant’s appeal has no merit and the same is dismissed.
28. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 25 TH DAY OF FEBRUARY 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPELLANT in person
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT