'(An appeal against the conviction and sentence by the Hon. S. M. Nyaga (P.M.) delivered on 18th July 2022 in Criminal Case No. 25 of 2020 in the Magistrate’s Court at Baricho)
1. The appellant was convicted and sentenced for the offence of defilement contrary to section 8(1) as read together with section 8(4) of the Sexual Offenses Act (Cap. 63A) Laws of Kenya (SOA). He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. For the principal charge, it was alleged that on diverse dates between 25th February 2020 and 15th July 2020 at Noonkopir estate in Kitengela township of Kajiado County, the appellant intentionally caused his penis to penetrate the vagina of P.N.M., a child aged 17 years.
3. The alternative charge alleged that on the same date, place, and time, the appellant intentionally rubbed his penis against the vagina of the said child.
4. The appellant pleaded ‘not guilty’ to both charges, and the case proceeded to trial. The prosecution presented four witnesses in support of its case against the appellant
5. PW 1, P. N. was the complainant.
6. PW 2, Hezron Macharia, was a clinical officer from Kerugoya County Referral Hospital.
7. PW 3, T. N. M., is the complainant’s mother.
8. PW 4, PC Emmanuel Asikoyo was the investigating officer.
9. The facts of the case are rather obvious and undisputed.
10. PW 1, P. N. M., the complainant was born on 3rd November 2002. A certificate of birth was produced in evidence to confirm her date of birth. She comes from Kiangai in Kirinyaga County. On 25th February 2020, she packed her clothes in the presence of her mother, PW 3, after what her mother described as differences over normal parenting rules with a child, left home, and went to stay with the appellant in Kitengela, Kajiado County. She was then about 17 years and three months old. The appellant sent her the fare, KShs 500/= that she used to pay for her travel. They stayed together until sometime around 15th July 2020, when the complainant went back home. While staying together, she engaged in sexual intercourse with the appellant, and the complainant became pregnant. She went back to her parents. The appellant was arrested and charged. Upon trial, he was found guilty of the principal charge. He was accordingly convicted and sentenced to serve 15 years'' imprisonment.
11. In her evidence, the complainant said the appellant had been her boyfriend since 2019. She also said that they had planned her travel for her to stay with him in Kitengela. She also said that they had been staying as husband and wife. She further testified that DNA results showed that the appellant was the father of her child. The report of DNA analysis was produced in court by the investigating officer.
12. In cross-examination, the complainant said that the appellant asked her age, but she did not tell him. She also said that she informed the appellant of the differences she had with her parents.
13. PW 3, T. N. M., the complainant’s mother, testified that the complainant went missing for six months. She was traced to Kitengela. The complainant called PW 3 on the phone and they agreed that she return home. PW 3 said that she asked the complainant (without explaining what she asked her), but she kept it to herself.
14. In cross-examination, PW 3 said that her differences with the complainant were out of normal parenting rules. PW 3 was suspicious when she saw the complainant packing her clothes. She left in the morning. PW 3 went to her school and did not find her. She said they immediately suspected the appellant, who had left home a month earlier, of being the culprit.
15. PW 2, Hezron Macharia, the clinical officer, testified that he examined the complainant on 7th August 2020, and the pregnancy test was positive. At the time, the complainant was 17 years and 8 months old. She was put on antenatal care.
16. PW 4, PC Asikoyo of Kirinyaga West, DCI, testified that on 16th June 2022, he was instructed to investigate and find a missing child, PW 1. They afterwards went to Kitengela and arrested the appellant. At the time, he was not with the complainant as she had left for home. After the complainant delivered herself, a DNA analysis was carried out, and the results showed that the appellant was the biological father of the child named N.N.
17. The appellant made an unsworn testimony in defence. He said that in 2019, he was working as a farmhand in Kiangai, where the complainant and her mother were also working on the tea farm. He realized the complainant was a schoolgirl. He therefore left and secured a job as a mason in Kitengela. The complainant called him on the phone, telling him that she had been called by her cousin in Nairobi with an offer for a job. She asked for and he sent her KShs 500/= for the fare. On 25th February 2020, the complainant informed him that she was in Nairobi, but her cousin’s phone was off. He went to Nairobi and met her. They tried calling her cousin to no avail. The complainant requested to accompany him to his place in Kitengela until her cousin picked her calls. They went to Kitengela to his residence. Upon inquiry, the complainant told him that she had a waiting card for the national identification card (ID), which she had applied for. He advised her that she could not secure a job without an ID card. They stayed together for about five months as husband and wife, since the complainant had told him that she had the waiting card, even though he never showed it to him. He kept asking her, and she kept promising to show it to him. In July 2020, the complainant told him that she wanted to travel home to collect her ID card. He gave her fare. He was arrested three days afterwards.
18. Upon evaluating the evidence, the trial court found that the prosecution had proved a case of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act against the appellant and sentenced him to a term of 15 years’ imprisonment.
19. The appellant was dissatisfied with both the conviction and sentence, and filed the present appeal based on the grounds that:
a) The learned trial magistrate erred in law and fact by not considering the circumstances of the case.
b) The learned trial magistrate erred in law and fact by failing to consider that the complainant acted as an adult, given that she was 17 years and eight months old.
c) The learned trial magistrate erred in law and fact by giving the appellant a harsh and excessive sentence and not considering the judiciary policy during sentencing.
d) The learned trial magistrate erred in law and fact by failing to consider the appellant’s defence and mitigation.
20. The appeal was heard by way of written submissions filed by both parties. The same are considered in the analysis that follows.
21. I have considered the grounds of appeal, the submissions by the appellant, the record of the trial court and the judgment and sentence of the trial court.
22. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence tendered at the trial and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. This was explained by the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336) and the appellate court''s own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the 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 findings 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 versus Sunday Post (1958) EA 424.”
23. Considering the facts of the present case, it is apparent that the elements of the offence of defilement, being that the victim was a child; that there was an act of penetration, and that the person who caused that act of penetration was the accused, were proved. The only issue for consideration before the trial court was whether or not the defence of deception as provided for under section 8(5) and (6) of the SOA was available to the appellant since he raised it. The appellant had the evidential burden to establish, albeit on a balance of probabilities, that the complainant deceived him into believing that she was an adult. The said section provides as follows:
(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.
24. The defence of deception under this section was considered by the Court of Appeal in the case of Wambui v Republic (Criminal Appeal 102 of 2016) [2019] KECA 906 (KLR) (22 March 2019) (Judgment) where the Court held as follows:
10. A witness in a criminal case upon whose evidence it was proposed to rely should not create an impression in the mind of the court that he was a not straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicated that he was a person of doubtful integrity, and therefore an unreliable witness which made it unsafe to accept his evidence. The evidence of PW2, properly evaluated, would have been in the category of an unreliable witness.
11. 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 insofar 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.
12. A reading of section 8(6) of the Sexual Offenses 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.
13. 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.
25. In this case, I do not find the complainant narrated her story, which was largely supported by her mother and the appellant. However, I find that the learned trial magistrate failed to evaluate her evidence together with that of the appellant in view of the defence available to the appellant under section 8(5) of the SOA.
26. In evaluating the appellant’s defence, the learned trial magistrate indicated that he did not find the appellant to be sincere because he rushed to elope with the complainant, knowing that she was a school child, without insisting on birth documents or ID card. I do not see how more sincere the appellant would have been beyond what he stated in his defence. He said that he asked the complainant for her ID card and she assured him that had the waiting card and, therefore, was waiting for her ID card to be processed and given to her by the government. That was an indication to the appellant that she was above the age of 18 years.
27. The learned trial magistrate seemed to place unwarranted emphasis on the fact of the complainant being schoolgoing. In such a case, the conduct of the complainant has to be considered in a wholesome manner and not just on the single issue of her being a schoolchild. The appellant was honest to say that he was aware that the complainant was in school. He therefore left his work in Kiangai and moved to Kajiado to avoid any relationship with her. Even though the complainant said that they had been in a relationship since 2019, which would put her age at the time at 16 years, she never indicated that the appellant had engaged in sexual intercourse with her. The only evidence of sexual intercourse came in February 2020 when they were in Kitengela. At this time, she was 17 years and 3 months old.
28. As held by the Court of Appeal in the above-cited case, whereas indeed the complainant was still in school, that alone would not rule out a reasonable belief that she would be over 18 years old as represented to the appellant. The Court of Appeal went further to state that 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. This explanation fits the circumstances of this case.
29. Therefore, in the present case, the fact that the complainant was in school in itself could not be a reason to discount the fact that the appellant inquired of her age and she represented to him that she was over 18 years old when she said that she had applied for and her national ID was being processed.
30. The learned trial magistrate only addressed the ingredients of the charge of defilement without addressing the issue of the defence of deception as raised by the appellant both in his defence and submissions herein.
31. There was evidence from the complainant and her mother, PW 3, that the complainant left home due to differences she had with her parents. Although PW 2 said that they reported the matter to the police, the evidence from the investigating officer was that they only received the report of the missing complainant in June. This shows that the parents were in no hurry to look for her, in spite of PW 3 testifying that when the complainant left home, suspicion fell upon the appellant. Indeed, the evidence of PW 3 was that it was only when the complainant called her that they agreed that she could return home. The complainant packed her bags and left home in the presence of her mother. Her mother said she did not even inform the complainant’s father. Could it be that the parents felt that the complainant’s conduct was unbearable? In my assessment, the conduct of the complainant, even towards her own parents, showed that she was inclined to do things her way. Therefore, if she really meant to stay with the appellant, yet she was aware that she was underage, she would, and indeed, deceived him into believing that she was over the age of 18 years. She had the guts to ask him for fare, and travel all the way to wherever he was.
32. The finding by the learned trial magistrate that the appellant was a dishonest person for sending the complainant fare, failing to take the complainant to the police station when they allegedly failed to find the complainant’s cousin, and staying with her for over five months, seems to me to have been without due consideration of the complainant’s conduct. The learned trial magistrate simply failed to apply his mind to the issue of the defence raised and available to the appellant, that the complainant had deceived him into believing that she was over the age of 18 years. The learned trial magistrate therefore engaged in extraneous issues that seem to have caused him not to dispassionately consider the defence raised by the appellant. I find that had he properly considered the defence, he would have arrived at a different conclusion that in fact, the appellant had discharged his burden on a balance of probability to show that the complainant had, by her conduct and words, deceived him into believing that she was an adult.
33. For the said reasons, I find that the conviction of the appellant for the offence of defilement was not safe in view of the complete defence of deception that he raised.
34. Consequently, I allow the appeal, quash the conviction and set aside the sentence of the appellant by the trial court for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
Orders accordingly.
Signed, Dated and Delivered on the virtual platform Teams this 22nd day of September, 2025.
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams in the presence of:
The Appellant in person from Nyeri prison.
Jamlick Mwangi, Prosecution Counsel for the State
Job Court Assistant
'
1. The appellant was convicted and sentenced for the offence of defilement contrary to section 8(1) as read together with section 8(4) of the Sexual Offenses Act (Cap. 63A) Laws of Kenya (SOA). He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. For the principal charge, it was alleged that on diverse dates between 25th February 2020 and 15th July 2020 at Noonkopir estate in Kitengela township of Kajiado County, the appellant intentionally caused his penis to penetrate the vagina of P.N.M., a child aged 17 years.
3. The alternative charge alleged that on the same date, place, and time, the appellant intentionally rubbed his penis against the vagina of the said child.
4. The appellant pleaded ‘not guilty’ to both charges, and the case proceeded to trial. The prosecution presented four witnesses in support of its case against the appellant
5. PW 1, P. N. was the complainant.
6. PW 2, Hezron Macharia, was a clinical officer from Kerugoya County Referral Hospital.
7. PW 3, T. N. M., is the complainant’s mother.
8. PW 4, PC Emmanuel Asikoyo was the investigating officer.
9. The facts of the case are rather obvious and undisputed.
10. PW 1, P. N. M., the complainant was born on 3rd November 2002. A certificate of birth was produced in evidence to confirm her date of birth. She comes from Kiangai in Kirinyaga County. On 25th February 2020, she packed her clothes in the presence of her mother, PW 3, after what her mother described as differences over normal parenting rules with a child, left home, and went to stay with the appellant in Kitengela, Kajiado County. She was then about 17 years and three months old. The appellant sent her the fare, KShs 500/= that she used to pay for her travel. They stayed together until sometime around 15th July 2020, when the complainant went back home. While staying together, she engaged in sexual intercourse with the appellant, and the complainant became pregnant. She went back to her parents. The appellant was arrested and charged. Upon trial, he was found guilty of the principal charge. He was accordingly convicted and sentenced to serve 15 years'' imprisonment.
11. In her evidence, the complainant said the appellant had been her boyfriend since 2019. She also said that they had planned her travel for her to stay with him in Kitengela. She also said that they had been staying as husband and wife. She further testified that DNA results showed that the appellant was the father of her child. The report of DNA analysis was produced in court by the investigating officer.
12. In cross-examination, the complainant said that the appellant asked her age, but she did not tell him. She also said that she informed the appellant of the differences she had with her parents.
13. PW 3, T. N. M., the complainant’s mother, testified that the complainant went missing for six months. She was traced to Kitengela. The complainant called PW 3 on the phone and they agreed that she return home. PW 3 said that she asked the complainant (without explaining what she asked her), but she kept it to herself.
14. In cross-examination, PW 3 said that her differences with the complainant were out of normal parenting rules. PW 3 was suspicious when she saw the complainant packing her clothes. She left in the morning. PW 3 went to her school and did not find her. She said they immediately suspected the appellant, who had left home a month earlier, of being the culprit.
15. PW 2, Hezron Macharia, the clinical officer, testified that he examined the complainant on 7th August 2020, and the pregnancy test was positive. At the time, the complainant was 17 years and 8 months old. She was put on antenatal care.
16. PW 4, PC Asikoyo of Kirinyaga West, DCI, testified that on 16th June 2022, he was instructed to investigate and find a missing child, PW 1. They afterwards went to Kitengela and arrested the appellant. At the time, he was not with the complainant as she had left for home. After the complainant delivered herself, a DNA analysis was carried out, and the results showed that the appellant was the biological father of the child named N.N.
17. The appellant made an unsworn testimony in defence. He said that in 2019, he was working as a farmhand in Kiangai, where the complainant and her mother were also working on the tea farm. He realized the complainant was a schoolgirl. He therefore left and secured a job as a mason in Kitengela. The complainant called him on the phone, telling him that she had been called by her cousin in Nairobi with an offer for a job. She asked for and he sent her KShs 500/= for the fare. On 25th February 2020, the complainant informed him that she was in Nairobi, but her cousin’s phone was off. He went to Nairobi and met her. They tried calling her cousin to no avail. The complainant requested to accompany him to his place in Kitengela until her cousin picked her calls. They went to Kitengela to his residence. Upon inquiry, the complainant told him that she had a waiting card for the national identification card (ID), which she had applied for. He advised her that she could not secure a job without an ID card. They stayed together for about five months as husband and wife, since the complainant had told him that she had the waiting card, even though he never showed it to him. He kept asking her, and she kept promising to show it to him. In July 2020, the complainant told him that she wanted to travel home to collect her ID card. He gave her fare. He was arrested three days afterwards.
18. Upon evaluating the evidence, the trial court found that the prosecution had proved a case of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act against the appellant and sentenced him to a term of 15 years’ imprisonment.
19. The appellant was dissatisfied with both the conviction and sentence, and filed the present appeal based on the grounds that:
a) The learned trial magistrate erred in law and fact by not considering the circumstances of the case.
b) The learned trial magistrate erred in law and fact by failing to consider that the complainant acted as an adult, given that she was 17 years and eight months old.
c) The learned trial magistrate erred in law and fact by giving the appellant a harsh and excessive sentence and not considering the judiciary policy during sentencing.
d) The learned trial magistrate erred in law and fact by failing to consider the appellant’s defence and mitigation.
20. The appeal was heard by way of written submissions filed by both parties. The same are considered in the analysis that follows.
21. I have considered the grounds of appeal, the submissions by the appellant, the record of the trial court and the judgment and sentence of the trial court.
22. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence tendered at the trial and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. This was explained by the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336) and the appellate court''s own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the 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 findings 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 versus Sunday Post (1958) EA 424.”
23. Considering the facts of the present case, it is apparent that the elements of the offence of defilement, being that the victim was a child; that there was an act of penetration, and that the person who caused that act of penetration was the accused, were proved. The only issue for consideration before the trial court was whether or not the defence of deception as provided for under section 8(5) and (6) of the SOA was available to the appellant since he raised it. The appellant had the evidential burden to establish, albeit on a balance of probabilities, that the complainant deceived him into believing that she was an adult. The said section provides as follows:
(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.
24. The defence of deception under this section was considered by the Court of Appeal in the case of Wambui v Republic (Criminal Appeal 102 of 2016) [2019] KECA 906 (KLR) (22 March 2019) (Judgment) where the Court held as follows:
10. A witness in a criminal case upon whose evidence it was proposed to rely should not create an impression in the mind of the court that he was a not straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicated that he was a person of doubtful integrity, and therefore an unreliable witness which made it unsafe to accept his evidence. The evidence of PW2, properly evaluated, would have been in the category of an unreliable witness.
11. 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 insofar 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.
12. A reading of section 8(6) of the Sexual Offenses 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.
13. 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.
25. In this case, I do not find the complainant narrated her story, which was largely supported by her mother and the appellant. However, I find that the learned trial magistrate failed to evaluate her evidence together with that of the appellant in view of the defence available to the appellant under section 8(5) of the SOA.
26. In evaluating the appellant’s defence, the learned trial magistrate indicated that he did not find the appellant to be sincere because he rushed to elope with the complainant, knowing that she was a school child, without insisting on birth documents or ID card. I do not see how more sincere the appellant would have been beyond what he stated in his defence. He said that he asked the complainant for her ID card and she assured him that had the waiting card and, therefore, was waiting for her ID card to be processed and given to her by the government. That was an indication to the appellant that she was above the age of 18 years.
27. The learned trial magistrate seemed to place unwarranted emphasis on the fact of the complainant being schoolgoing. In such a case, the conduct of the complainant has to be considered in a wholesome manner and not just on the single issue of her being a schoolchild. The appellant was honest to say that he was aware that the complainant was in school. He therefore left his work in Kiangai and moved to Kajiado to avoid any relationship with her. Even though the complainant said that they had been in a relationship since 2019, which would put her age at the time at 16 years, she never indicated that the appellant had engaged in sexual intercourse with her. The only evidence of sexual intercourse came in February 2020 when they were in Kitengela. At this time, she was 17 years and 3 months old.
28. As held by the Court of Appeal in the above-cited case, whereas indeed the complainant was still in school, that alone would not rule out a reasonable belief that she would be over 18 years old as represented to the appellant. The Court of Appeal went further to state that 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. This explanation fits the circumstances of this case.
29. Therefore, in the present case, the fact that the complainant was in school in itself could not be a reason to discount the fact that the appellant inquired of her age and she represented to him that she was over 18 years old when she said that she had applied for and her national ID was being processed.
30. The learned trial magistrate only addressed the ingredients of the charge of defilement without addressing the issue of the defence of deception as raised by the appellant both in his defence and submissions herein.
31. There was evidence from the complainant and her mother, PW 3, that the complainant left home due to differences she had with her parents. Although PW 2 said that they reported the matter to the police, the evidence from the investigating officer was that they only received the report of the missing complainant in June. This shows that the parents were in no hurry to look for her, in spite of PW 3 testifying that when the complainant left home, suspicion fell upon the appellant. Indeed, the evidence of PW 3 was that it was only when the complainant called her that they agreed that she could return home. The complainant packed her bags and left home in the presence of her mother. Her mother said she did not even inform the complainant’s father. Could it be that the parents felt that the complainant’s conduct was unbearable? In my assessment, the conduct of the complainant, even towards her own parents, showed that she was inclined to do things her way. Therefore, if she really meant to stay with the appellant, yet she was aware that she was underage, she would, and indeed, deceived him into believing that she was over the age of 18 years. She had the guts to ask him for fare, and travel all the way to wherever he was.
32. The finding by the learned trial magistrate that the appellant was a dishonest person for sending the complainant fare, failing to take the complainant to the police station when they allegedly failed to find the complainant’s cousin, and staying with her for over five months, seems to me to have been without due consideration of the complainant’s conduct. The learned trial magistrate simply failed to apply his mind to the issue of the defence raised and available to the appellant, that the complainant had deceived him into believing that she was over the age of 18 years. The learned trial magistrate therefore engaged in extraneous issues that seem to have caused him not to dispassionately consider the defence raised by the appellant. I find that had he properly considered the defence, he would have arrived at a different conclusion that in fact, the appellant had discharged his burden on a balance of probability to show that the complainant had, by her conduct and words, deceived him into believing that she was an adult.
33. For the said reasons, I find that the conviction of the appellant for the offence of defilement was not safe in view of the complete defence of deception that he raised.
34. Consequently, I allow the appeal, quash the conviction and set aside the sentence of the appellant by the trial court for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
Orders accordingly.
Signed, Dated and Delivered on the virtual platform Teams this 22nd day of September, 2025.
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams in the presence of:
The Appellant in person from Nyeri prison.
Jamlick Mwangi, Prosecution Counsel for the State
Job Court Assistant
'