(An appeal from the conviction and sentence in Chief Magistrates Court at Kilungu Sexual Offence Case No. E036 of 2022, Judgment delivered on 13 th May, 2024 by Hon. F. Makoyo, PM.)
1. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual offences Act No. 3 of 2006. The particulars of the charge were that on an unknown date and time in the month of October 2021 at Kilome Location in Mukaa Sub-county within Makueni County, he intentionally and unlawfully caused his penis to penetrate the vagina of E.W. a child aged 17 years old. He was convicted of the said offence and sentenced to 15 years imprisonment.
2. The Appellant was dissatisfied with the Judgment and brought this appeal against the conviction and the sentence. The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions and the Court has considered the same at length.
3. Having considered the Grounds of Appeal and the submissions made by the parties, I find that the issue for determination is whether the offence of defilement was proven to the required standard, thereby warranting a conviction.
4. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
5. The court in George Opondo Olunga vs. Republic [2016] eKLR established that the ingredients of the offence of defilement are: the age of the victim, penetration and proper identification of the perpetrator.
6. I have looked at the evidence on record and the testimonies of the witnesses. There is no doubt that the prosecution proved the three elements of defilement. First, there was a DNA report showing that the Complainant conceived as a result of the defilement and that the Appellant was the father of the child. Second, there was documentary evidence to show that Complainant was 16 years 6 months old at the time of the alleged defilement. This is because her immunization card showed that she was born on 18 th April, 2005 and her testimony was that she was defiled on 14 th October, 2021.
7. However, the Appellant gave sworn testimony in which he raised the defense that the Complainant deceived him about her age. He told the Court that at the onset on their relationship, he asked the Complainant about her age and she told him that she was 18 years old. He testified that he believed her and relied on her word of mouth. In essence, the Appellant raised the defense under section 8 (5) of the Sexual Offences Act. The question before the Court is whether the Appellant established the said defence to warrant an acquittal.
8. Section 8 of the Sexual Offences Act , provides as follows;
Section 8
(5) 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.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
9. The Court of Appeal has made useful observations on how courts should interrogate the evidence once an accused person raises the defense under Section 8 (5) of the Sexual Offences Act.
10. In Wambui v Republic [2019] KECA 906 (KLR) , the Court interrogated the said defense and held as follows;
Section 8(5) of the Sexual Offences Act stated that it was a defence to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. Section 8(5) was a curious provision in so far as it was set in conjunctive as opposed to disjunctive terms which would seem to be more logical. Once a person had actually been deceived into believing a certain state of things, it added little to require that his belief be reasonably held.
A reading of section 8(6) of the Sexual Offences Act seemed to add a qualification to subsection (5)(b) that separated it from the belief proceeding from deception in subsection (5)(a). Therefore, the elements constituting the defence should be read disjunctively if the two sub-sections were to make sense. Further, it stood to reason that a person was more likely to be deceived into believing that a child was over the age of 18 years if the said child was in the age bracket of 16 to 18 years old, and that the closer to 18 years the child was, the more likely the deception, and the more likely the belief that he or she was over the age of 18 years.
The burden of proving that deception or belief fell upon the appellant, but the burden was on a balance of probabilities to be assessed on the basis of the appellant’s subjective view of the facts. Thus, whereas indeed the complainant was still in school in Form 4, that alone would not rule out a reasonable belief that she would be over 18 years old. It was also germane to point out that a child need not deceive by way of actively telling a lie that she was over the age of 18 years. Had the two lower courts properly directed their minds to the appellant’s defence and the totality of the circumstances of the case, they would in all likelihood have arrived at a different conclusion on it. It was a non-direction that they did not do so, rendering the conviction unsafe.
11. Similarly, the Court of Appeal in Frank Ochieng Otieno v Republic [2015] KECA 854 (KLR) interrogated the same defense and observed as follows;
In the instant case, the appellant, in his defence, stated that the complainant wanted someone to marry her and he accepted. He further stated that she told him that she was above eighteen years. The appellant clearly raised the defence envisaged in subsections 5(a) and (b) of the Sexual Offences Act. The complainant told him that she was above eighteen (18) years which was not true. She therefore deceived him into believing that she was above eighteen (18) years of age at the time of the alleged commission of the offence.
The statement of the appellant had some support in the evidence of the complainant herself…. It was also illustrative that the complainant made no complaint of the alleged defilement.
The totality of this evidence, in our view, suggested that the appellant could easily have believed the complainant’s statement that she was over eighteen years. We cannot appreciate why, given that evidence, the trial magistrate found the appellant’s statement unreasonable and unbelievable. We also cannot appreciate what other steps the appellant could have taken to ascertain that the complainant was over eighteen years when the complainant herself had said so and had conducted herself like one aged over eighteen years.
12. In the instant case, the Complainant was 16 years 6 months at the time of the defilement. In addition, she was undergoing training at a polytechnic at the time of the defilement. It is also clear that the Complainant did not report the defilement; she did not tell her parents or the police at that time. In the Complainant’s testimony, she was defiled on 14 th October, 2021 and she only reported to the police on 31 st October, 2022, which was a year later.
13. I note that given her age, the Complainant was closer to 18 years, which makes the deception more likely. In addition, and given the said age, I am of the view that the Appellant was more likely to believe that she was over the age of 18 years. Furthermore, the Complainant was attending a polytechnic training course at the time and it is illustrative that she did not make the complaint of the alleged defilement.
14. The lower Court did not adequately consider these facts in light of the Appellant’s defense, and the Court dismissed the same as an afterthought. I opine that the lower Court would have arrived at a different conclusion had it given due consideration to the Appellant’s defense.
15. As already pointed out earlier, the Court of Appeal in Wambui v Republic [2019] KECA 906 (KLR) held that the burden of proving the deception or belief fell upon the appellant, and that the burden was on a balance of probabilities to be assessed on the basis of the appellant’s subjective view of the facts.
16. In my view, the Appellant established, on a balance of probabilities, the defense under section 8 (5) of the Sexual Offences Act. The totality of this evidence, in my view, suggests that the Appellant could easily have believed the Complainant’s statement that she was over eighteen years. Therefore, I find that the Appellant sufficiently established the defense and hence the conviction was unsafe.
Disposition
17. The Appeal succeeds.
18. The Conviction is hereby quashed and the sentence is set aside.
19. The Appellant be set at lib erty forthwith unless otherwise lawfully held.
20. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 13TH day of APRIL , 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Musango, ODPP
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1. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual offences Act No. 3 of 2006. The particulars of the charge were that on an unknown date and time in the month of October 2021 at Kilome Location in Mukaa Sub-county within Makueni County, he intentionally and unlawfully caused his penis to penetrate the vagina of E.W. a child aged 17 years old. He was convicted of the said offence and sentenced to 15 years imprisonment.
2. The Appellant was dissatisfied with the Judgment and brought this appeal against the conviction and the sentence. The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions and the Court has considered the same at length.
3. Having considered the Grounds of Appeal and the submissions made by the parties, I find that the issue for determination is whether the offence of defilement was proven to the required standard, thereby warranting a conviction.
4. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
5. The court in George Opondo Olunga vs. Republic [2016] eKLR established that the ingredients of the offence of defilement are: the age of the victim, penetration and proper identification of the perpetrator.
6. I have looked at the evidence on record and the testimonies of the witnesses. There is no doubt that the prosecution proved the three elements of defilement. First, there was a DNA report showing that the Complainant conceived as a result of the defilement and that the Appellant was the father of the child. Second, there was documentary evidence to show that Complainant was 16 years 6 months old at the time of the alleged defilement. This is because her immunization card showed that she was born on 18 th April, 2005 and her testimony was that she was defiled on 14 th October, 2021.
7. However, the Appellant gave sworn testimony in which he raised the defense that the Complainant deceived him about her age. He told the Court that at the onset on their relationship, he asked the Complainant about her age and she told him that she was 18 years old. He testified that he believed her and relied on her word of mouth. In essence, the Appellant raised the defense under section 8 (5) of the Sexual Offences Act. The question before the Court is whether the Appellant established the said defence to warrant an acquittal.
8. Section 8 of the Sexual Offences Act , provides as follows;
Section 8
(5) 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.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
9. The Court of Appeal has made useful observations on how courts should interrogate the evidence once an accused person raises the defense under Section 8 (5) of the Sexual Offences Act.
10. In Wambui v Republic [2019] KECA 906 (KLR) , the Court interrogated the said defense and held as follows;
Section 8(5) of the Sexual Offences Act stated that it was a defence to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. Section 8(5) was a curious provision in so far as it was set in conjunctive as opposed to disjunctive terms which would seem to be more logical. Once a person had actually been deceived into believing a certain state of things, it added little to require that his belief be reasonably held.
A reading of section 8(6) of the Sexual Offences Act seemed to add a qualification to subsection (5)(b) that separated it from the belief proceeding from deception in subsection (5)(a). Therefore, the elements constituting the defence should be read disjunctively if the two sub-sections were to make sense. Further, it stood to reason that a person was more likely to be deceived into believing that a child was over the age of 18 years if the said child was in the age bracket of 16 to 18 years old, and that the closer to 18 years the child was, the more likely the deception, and the more likely the belief that he or she was over the age of 18 years.
The burden of proving that deception or belief fell upon the appellant, but the burden was on a balance of probabilities to be assessed on the basis of the appellant’s subjective view of the facts. Thus, whereas indeed the complainant was still in school in Form 4, that alone would not rule out a reasonable belief that she would be over 18 years old. It was also germane to point out that a child need not deceive by way of actively telling a lie that she was over the age of 18 years. Had the two lower courts properly directed their minds to the appellant’s defence and the totality of the circumstances of the case, they would in all likelihood have arrived at a different conclusion on it. It was a non-direction that they did not do so, rendering the conviction unsafe.
11. Similarly, the Court of Appeal in Frank Ochieng Otieno v Republic [2015] KECA 854 (KLR) interrogated the same defense and observed as follows;
In the instant case, the appellant, in his defence, stated that the complainant wanted someone to marry her and he accepted. He further stated that she told him that she was above eighteen years. The appellant clearly raised the defence envisaged in subsections 5(a) and (b) of the Sexual Offences Act. The complainant told him that she was above eighteen (18) years which was not true. She therefore deceived him into believing that she was above eighteen (18) years of age at the time of the alleged commission of the offence.
The statement of the appellant had some support in the evidence of the complainant herself…. It was also illustrative that the complainant made no complaint of the alleged defilement.
The totality of this evidence, in our view, suggested that the appellant could easily have believed the complainant’s statement that she was over eighteen years. We cannot appreciate why, given that evidence, the trial magistrate found the appellant’s statement unreasonable and unbelievable. We also cannot appreciate what other steps the appellant could have taken to ascertain that the complainant was over eighteen years when the complainant herself had said so and had conducted herself like one aged over eighteen years.
12. In the instant case, the Complainant was 16 years 6 months at the time of the defilement. In addition, she was undergoing training at a polytechnic at the time of the defilement. It is also clear that the Complainant did not report the defilement; she did not tell her parents or the police at that time. In the Complainant’s testimony, she was defiled on 14 th October, 2021 and she only reported to the police on 31 st October, 2022, which was a year later.
13. I note that given her age, the Complainant was closer to 18 years, which makes the deception more likely. In addition, and given the said age, I am of the view that the Appellant was more likely to believe that she was over the age of 18 years. Furthermore, the Complainant was attending a polytechnic training course at the time and it is illustrative that she did not make the complaint of the alleged defilement.
14. The lower Court did not adequately consider these facts in light of the Appellant’s defense, and the Court dismissed the same as an afterthought. I opine that the lower Court would have arrived at a different conclusion had it given due consideration to the Appellant’s defense.
15. As already pointed out earlier, the Court of Appeal in Wambui v Republic [2019] KECA 906 (KLR) held that the burden of proving the deception or belief fell upon the appellant, and that the burden was on a balance of probabilities to be assessed on the basis of the appellant’s subjective view of the facts.
16. In my view, the Appellant established, on a balance of probabilities, the defense under section 8 (5) of the Sexual Offences Act. The totality of this evidence, in my view, suggests that the Appellant could easily have believed the Complainant’s statement that she was over eighteen years. Therefore, I find that the Appellant sufficiently established the defense and hence the conviction was unsafe.
Disposition
17. The Appeal succeeds.
18. The Conviction is hereby quashed and the sentence is set aside.
19. The Appellant be set at lib erty forthwith unless otherwise lawfully held.
20. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 13TH day of APRIL , 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Musango, ODPP
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