REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E003 OF 2024
MDATA MWANONGO MANGALE………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the judgment and sentence of Hon. Sandra Ogot, PM in Msambweni Magistrates Court S.O. Case No. E021 of 2023 delivered on 29/10/2023)
J U D G M E N T
1. The appellant, Mdata Mwanongo Mangale was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars of offence were that on diverse dates between 27/2/2023 and 25/3/2023 at Vivurungani village of Kinango sub-County in Kwale County he unlawfully and intentionally caused his penis to penetrate the vagina of U.M. a child aged 15 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the SoA. Particulars being that during the said period and at the same place as in the principal charge, he intentionally and unlawfully caused his penis to touch the vagina of U.M. a child aged 15 years.
3. The appellant denied both charges at plea. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his grounds of appeal in the petition dated 3/11/2023: -
a. The learned trial magistrate erred in law and fact by convicting the appellant but failed to note that the age of the complainant was not conclusively proved.
b. The learned trial magistrate erred in law and fact by convicting the appellant but failed to note that identification of the assailant was not proved by either identification or recognition.
c. The learned trial magistrate erred in law and fact by convicting the appellant but failed to note that penetration was not proved.
d. The learned magistrate erred in law and facts for not considering that crucial witnesses were not summoned in court.
e. The learned magistrate erred in law and facts for dismissing the appellant’s defence without legal basis.
f. The appellant’s rights under article 50(2)(g) and (h) of the Constitution was breached as the appellant did not understand the proceedings.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside.
6. The appeal was canvassed through written submissions filed by both the appellant and the respondent which I have duly considered.
7. As a first appellate court, I am duty bound to examine, re-evaluate and reconsider all the evidence on record afresh and come to my own independent conclusions and inferences bearing in mind that I did not see or hear the witnesses testify first-hand as guided by the case of Okeno v Republic (1972) EA 32.
8. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called no witness.
9. PW 1, U.M. was the complainant. She said she was 15 years old but could not tell her date, month or year of birth. She never went to school. She said that she was given over to the appellant by her grandmother for marriage on the evening of 25/2/2023. He went with the appellant to his home and stayed with him as his wife until 25/3/2023. They engaged in sexual intercourse during that period. PW 2 Daniel Chikumbua Mwachiami, the complainant’s paternal uncle was the one who followed up the issue and had the complainant rescued from the early marriage and the appellant arrested and charged. PW 3, Gladys Kibet, a clinical officer at Lunga Lunga hospital testified on behalf of her colleague Athuman Rajab whose contract had expired and who had completed the complainant’s P3 form. According to the evidence of PW 3, the findings of the medical examination of the complainant showed that her hymen was not intact. A high vaginal swab done showed that the complainant had an infection and UTI which could be caused by poor hygiene or sex. There were not other significant findings of the examination. PW 4, PC Nelson Rotich was the investigating officer in the case. He recounted the evidence as he was told by the witnesses.
10. DW 1, Mdata Mwanongo Mangale was the appellant. He gave sworn evidence in defence and did not call another witness. He denied that he committed the offence. His defence was simple, that the complainant was handed over to him by her parents and her grandmother who told him that the complainant was 19 years old and she had never gone to school since she was borne.
11. The appellant said that PW 2 visited them at his home on 25/3/2023 and asked for him to give KShs 25,000/= to assist in facilitating the release of the complainant’s father who had been arrested for a wildlife crime. He did not have the money at the time but promised to look for it and revert on Monday. PW 2 was not pleased. He went away and returned with police officers who then arrested him and he was subsequently charged with the offences.
12. Upon hearing that evidence, the learned trial magistrate was satisfied that the prosecution had proved its case against the appellant beyond a reasonable doubt. He was therefore convicted and sentenced.
13. I have examined the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the appellant and the respondent herein.
14. Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant was charged and convicted provide as follows: S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
15. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
16. The learned trial magistrate properly appraised the provisions of the law on the essential ingredients to be established by the prosecution in order to prove the offence of defilement as outlined above and also in the case of G.O.A v R (2018) eKLR. She set them out and evaluated the evidence tendered in proof of each of them.
17. The appellant submits that the complainant evidence lacks credibility because, in spite of the complainant staying at his home for over one month with the neighbours, nyumba kumi, village elders and even assistant chief all aware, nobody raised an issue. He submits that the complainant said she never told the appellant that she was nineteen years old and wonders how the complainant arrived at this age. He submits that the complainant’s relatives laid a trap to have him arrested, ostensibly by offering the complainant to him for marriage.
18. The appellant further submits that the learned trial magistrate failed to consider his defence that the complainant’s uncle, PW 2 demanded for KShs 25,000/= in order to settle the matter which for him was an attempt at extortion and he declined to participate in it as he is innocent.
19. According to the appellant, the complainant’s relatives told him that the complainant was 19 years old and ready for marriage which was deliberate in order to mislead the appellant and with malice, harbouring a hidden agenda.
20. The appellant submits that it was not proper for the learned trial magistrate to dismiss the appellant’s defence under section 8(5) and (6) of the SoA as the appellant had taken due diligence to inquire about the complainant’s age and the complainant told him that she was employed which according to him naturally implied as it would to a reasonable person that the complainant was an adult and not a school-going girl. He therefore submits that his actions may have been inadvertent and due to a mistake after he was given the wrong information by the complainant’s grandmother that she was 19 years old. He had been informed that the complainant’s certificate of birth was burnt in their house earlier.
21. Learned counsel for the respondent submitted on proof of the three ingredients of the offence of defilement as outlined above and said that each of them was proved beyond a reasonable doubt and therefore the learned trial court was correct in convicting the appellant.
22. The learned counsel for the respondent did not however submit on the issue of the defence of deception and reasonable belief under section 8(5) and (6) of the SoA raised by the appellant in his defence and in this appeal.
23. The appellant, although not expressing it outrightly so, does not dispute that he had sexual intercourse with the complainant for the period that he took her in as his wife. Consequently, I find that the elements of penetration and identification of the appellant as the perpetrator of are not in contention. The two were proved beyond a reasonable doubt.
24. The remaining issue is proof of the age of the complainant as a minor.
25. There is no doubt that the complainant was the only witness of her age. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
26. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
27. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
28. The learned trial magistrate upon evaluating the evidence of age concluded that the complainant had said that she was 15 years old. No other person testified as such other than the complainant. The complainant however said that she did not know her date of birth as she had never attended school. The question then becomes how did she come to know her age? This question was not put to her during examination in chief. In those circumstances, could the complainant’s word that she was 15 years’ old be relied upon as being the truth of her age?
29. The other evidence about the complainant’s age was a note produced in court by PW 4 as exhibit 4 showing that one Rashid Hamisi had examined the complainant and found her age to be about 14 years. This would make the complainant one year younger than she had stated in her evidence. Still she would be under 18 years old. But more fundamentally it creates a doubt on the correct age of the complainant and whether there was certainty that she was a minor at the time. The learned trial magistrate did not address the issue of the conflict of age in the evidence of the complainant and the medical evidence.
30. In view of this conflict and the fact that the complainant was not aware of her date of birth, not even the month or year, it would have been better for the prosecution to make available the said Rashid Hamisi who is said to have done the age assessment to attend court to explain how he arrived at the complainant’s age as 14 years. He would probably have explained the methodology he used to conduct the age assessment and arrive at the age of 14 years. That evidence was crucial in establishing the validity of the assessment. His absence therefore leads to questions about the accuracy of the finding that the complainant was about 14 years old. Could he have taken this from the complainant herself, yet she was not aware of her date of birth? Could it have been solely on her physical appearance? These questions remained unanswered and therefore raise concerns about the reliability of the evidence upon which the learned trial magistrate based her findings. The evidence of Hamisi would have assisted the trial court to determine how possible it was for Hamisi to determine the age of the complainant as 14 years, the higher and lower ranges he would have given her and whether the higher range fell above 18 years old. Basically, the learned trial magistrate simply relied on what was written on the note (Exh. 4) as 14 years without critically subjecting it to analysis to see whether it was one that would give the court confidence that it was the correct age of the complainant, even if only an approximation.
31. This then brings in the defence by the appellant that the complainant’s grandmother had told him that she was 19 years old. This raised the statutory defence of deception and reasonable belief under section 8(5) and (6) of the SoA which 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.
32. The learned trial magistrate dismissed the appellant’s defence of deception and reasonable belief by finding that the complainant testified that she was forced to board the motorcycle on which the appellant picked her under the threat of being caned by her grandmother. The learned magistrate then went ahead to find that at this point, the appellant should have confirmed from the complainant whether she was agreeable to what she was being put into by her grandmother. This means that the learned trial magistrate believed the complainant’s evidence that she was not agreeable to the arrangement of her being married to the appellant. The learned trial magistrate also found that the appellant had not produced any evidence to support his assertion that the victim, her parents and grandmother were the ones that approached him and told him to marry the complainant. But what other evidence would he have tendered other than his word under oath? When he said that this is what happened, it became his word as against that of the complainant.
33. The appellant having stated that the victim together with her mother and grandmother had approached the appellant to marry her, it was upon the prosecution to rebut that evidence, which I find was not done. In that case, it is difficult for me to see how the learned magistrate then believed the complainant’s testimony that she was forced under threats of being caned to live with the appellant as his wife. The complainant’s conduct afterwards of staying with the appellant without any form of protestation does not support her assertion that she accompanied under coercion of her grandmother. Indeed, the appellant alluded to the issue of the complainant being aware of the plan to marry her off earlier, when he put it to her that she had even told her employer that she would be leaving for marriage. She denied that she had done so but agreed that she was indeed employed in a salon and that she was aware of the plans to marry her off. So, the appellant’s assertions that she could have been part of the plan to marry her off under the deception that she was 19 years old cannot be dismissed with the wave of a hand as being without merit as it is the complainant’s word as against that of the appellant. Considered critically, it creates a doubt in the mind of the court on the truthfulness of the complainant’s testimony that she never told the appellant that she was 19 years old.
34. The learned trial magistrate also found that the appellant failed to take steps to ascertain the correct age of the complainant as provided for under the law.
35. The complainant herself said she did not know her date of birth. It was therefore not possible for her to tell the complainant what her correct age was. The complainant was not in school and had never been to school. She was working in a salon. The learned trial magistrate has not indicated what else beyond this the appellant would have done to ascertain the complainant’s age. There is no indication from the prosecution’s case that from her physical stature, demeanor and appearance, the appellant or indeed anybody else looking at her would readily conclude that she was under the age of 18 years.
36. The Court of Appeal while dealing with the defence under section 8(5) and (6) of the SoA in the case of Wambui v Republic [2019] KECA 906 (KLR) as follows:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence could not be gainsaid. It was not in doubt that the age of the victim was an essential ingredient of the offence of defilement and formed an important part of the charge because the prescribed sentence was dependent on the age of the victim…
The totality of the evidence on age was that it did not possess the consistency and certainty that would have proved the exact date of the complainant’s birth beyond reasonable doubt. Therefore, had the trial court gone into an analysis of the evidence with the thoroughness that was required of it, it would probably have arrived at a different conclusion. In failing to engage in that exhaustive re-evaluation, it fell into error and the lingering doubts had to be resolved in favour of the complainant…
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.”
37. In the present case, I am not satisfied that the age of the complainant was proved as 15 years as stated in the charge or that she was under the age of 18 years because she could not tell her date of birth and the medical evidence of assessment of her age was not satisfactory.
38. The learned trial magistrate seems to have required the appellant to prove his statutory defence of deception and reasonable belief beyond a reasonable doubt, which was an error. I find that the appellant’s defence that he was deceived both by the complainant and her grandmother with the participation of her mother that the complainant was 19 years old and so he had reasonable belief that she was of that age was viable and therefore absolved him of blame in the case.
39. On account of the foregoing determinations, I find that it was unsafe for the trial court to convict the appellant for the offence of defilement.
40. Consequently, and for the above reasons, the appeal is allowed, the conviction of the appellant for the offence of defilement contrary to section 8(1) as read with 8(3) of the SoA is quashed and the sentence set aside. It is ordered that the appellant be set at liberty unless otherwise lawfully held.
41. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 2nd day of May 2025 in the presence of:
The appellant in person in Naivasha maximum prison.
Ms Vallerie for the respondent.
Johnson: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E003 OF 2024
MDATA MWANONGO MANGALE………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the judgment and sentence of Hon. Sandra Ogot, PM in Msambweni Magistrates Court S.O. Case No. E021 of 2023 delivered on 29/10/2023)
J U D G M E N T
1. The appellant, Mdata Mwanongo Mangale was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars of offence were that on diverse dates between 27/2/2023 and 25/3/2023 at Vivurungani village of Kinango sub-County in Kwale County he unlawfully and intentionally caused his penis to penetrate the vagina of U.M. a child aged 15 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the SoA. Particulars being that during the said period and at the same place as in the principal charge, he intentionally and unlawfully caused his penis to touch the vagina of U.M. a child aged 15 years.
3. The appellant denied both charges at plea. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his grounds of appeal in the petition dated 3/11/2023: -
a. The learned trial magistrate erred in law and fact by convicting the appellant but failed to note that the age of the complainant was not conclusively proved.
b. The learned trial magistrate erred in law and fact by convicting the appellant but failed to note that identification of the assailant was not proved by either identification or recognition.
c. The learned trial magistrate erred in law and fact by convicting the appellant but failed to note that penetration was not proved.
d. The learned magistrate erred in law and facts for not considering that crucial witnesses were not summoned in court.
e. The learned magistrate erred in law and facts for dismissing the appellant’s defence without legal basis.
f. The appellant’s rights under article 50(2)(g) and (h) of the Constitution was breached as the appellant did not understand the proceedings.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside.
6. The appeal was canvassed through written submissions filed by both the appellant and the respondent which I have duly considered.
7. As a first appellate court, I am duty bound to examine, re-evaluate and reconsider all the evidence on record afresh and come to my own independent conclusions and inferences bearing in mind that I did not see or hear the witnesses testify first-hand as guided by the case of Okeno v Republic (1972) EA 32.
8. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called no witness.
9. PW 1, U.M. was the complainant. She said she was 15 years old but could not tell her date, month or year of birth. She never went to school. She said that she was given over to the appellant by her grandmother for marriage on the evening of 25/2/2023. He went with the appellant to his home and stayed with him as his wife until 25/3/2023. They engaged in sexual intercourse during that period. PW 2 Daniel Chikumbua Mwachiami, the complainant’s paternal uncle was the one who followed up the issue and had the complainant rescued from the early marriage and the appellant arrested and charged. PW 3, Gladys Kibet, a clinical officer at Lunga Lunga hospital testified on behalf of her colleague Athuman Rajab whose contract had expired and who had completed the complainant’s P3 form. According to the evidence of PW 3, the findings of the medical examination of the complainant showed that her hymen was not intact. A high vaginal swab done showed that the complainant had an infection and UTI which could be caused by poor hygiene or sex. There were not other significant findings of the examination. PW 4, PC Nelson Rotich was the investigating officer in the case. He recounted the evidence as he was told by the witnesses.
10. DW 1, Mdata Mwanongo Mangale was the appellant. He gave sworn evidence in defence and did not call another witness. He denied that he committed the offence. His defence was simple, that the complainant was handed over to him by her parents and her grandmother who told him that the complainant was 19 years old and she had never gone to school since she was borne.
11. The appellant said that PW 2 visited them at his home on 25/3/2023 and asked for him to give KShs 25,000/= to assist in facilitating the release of the complainant’s father who had been arrested for a wildlife crime. He did not have the money at the time but promised to look for it and revert on Monday. PW 2 was not pleased. He went away and returned with police officers who then arrested him and he was subsequently charged with the offences.
12. Upon hearing that evidence, the learned trial magistrate was satisfied that the prosecution had proved its case against the appellant beyond a reasonable doubt. He was therefore convicted and sentenced.
13. I have examined the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the appellant and the respondent herein.
14. Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant was charged and convicted provide as follows: S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
15. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
16. The learned trial magistrate properly appraised the provisions of the law on the essential ingredients to be established by the prosecution in order to prove the offence of defilement as outlined above and also in the case of G.O.A v R (2018) eKLR. She set them out and evaluated the evidence tendered in proof of each of them.
17. The appellant submits that the complainant evidence lacks credibility because, in spite of the complainant staying at his home for over one month with the neighbours, nyumba kumi, village elders and even assistant chief all aware, nobody raised an issue. He submits that the complainant said she never told the appellant that she was nineteen years old and wonders how the complainant arrived at this age. He submits that the complainant’s relatives laid a trap to have him arrested, ostensibly by offering the complainant to him for marriage.
18. The appellant further submits that the learned trial magistrate failed to consider his defence that the complainant’s uncle, PW 2 demanded for KShs 25,000/= in order to settle the matter which for him was an attempt at extortion and he declined to participate in it as he is innocent.
19. According to the appellant, the complainant’s relatives told him that the complainant was 19 years old and ready for marriage which was deliberate in order to mislead the appellant and with malice, harbouring a hidden agenda.
20. The appellant submits that it was not proper for the learned trial magistrate to dismiss the appellant’s defence under section 8(5) and (6) of the SoA as the appellant had taken due diligence to inquire about the complainant’s age and the complainant told him that she was employed which according to him naturally implied as it would to a reasonable person that the complainant was an adult and not a school-going girl. He therefore submits that his actions may have been inadvertent and due to a mistake after he was given the wrong information by the complainant’s grandmother that she was 19 years old. He had been informed that the complainant’s certificate of birth was burnt in their house earlier.
21. Learned counsel for the respondent submitted on proof of the three ingredients of the offence of defilement as outlined above and said that each of them was proved beyond a reasonable doubt and therefore the learned trial court was correct in convicting the appellant.
22. The learned counsel for the respondent did not however submit on the issue of the defence of deception and reasonable belief under section 8(5) and (6) of the SoA raised by the appellant in his defence and in this appeal.
23. The appellant, although not expressing it outrightly so, does not dispute that he had sexual intercourse with the complainant for the period that he took her in as his wife. Consequently, I find that the elements of penetration and identification of the appellant as the perpetrator of are not in contention. The two were proved beyond a reasonable doubt.
24. The remaining issue is proof of the age of the complainant as a minor.
25. There is no doubt that the complainant was the only witness of her age. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
26. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
27. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
28. The learned trial magistrate upon evaluating the evidence of age concluded that the complainant had said that she was 15 years old. No other person testified as such other than the complainant. The complainant however said that she did not know her date of birth as she had never attended school. The question then becomes how did she come to know her age? This question was not put to her during examination in chief. In those circumstances, could the complainant’s word that she was 15 years’ old be relied upon as being the truth of her age?
29. The other evidence about the complainant’s age was a note produced in court by PW 4 as exhibit 4 showing that one Rashid Hamisi had examined the complainant and found her age to be about 14 years. This would make the complainant one year younger than she had stated in her evidence. Still she would be under 18 years old. But more fundamentally it creates a doubt on the correct age of the complainant and whether there was certainty that she was a minor at the time. The learned trial magistrate did not address the issue of the conflict of age in the evidence of the complainant and the medical evidence.
30. In view of this conflict and the fact that the complainant was not aware of her date of birth, not even the month or year, it would have been better for the prosecution to make available the said Rashid Hamisi who is said to have done the age assessment to attend court to explain how he arrived at the complainant’s age as 14 years. He would probably have explained the methodology he used to conduct the age assessment and arrive at the age of 14 years. That evidence was crucial in establishing the validity of the assessment. His absence therefore leads to questions about the accuracy of the finding that the complainant was about 14 years old. Could he have taken this from the complainant herself, yet she was not aware of her date of birth? Could it have been solely on her physical appearance? These questions remained unanswered and therefore raise concerns about the reliability of the evidence upon which the learned trial magistrate based her findings. The evidence of Hamisi would have assisted the trial court to determine how possible it was for Hamisi to determine the age of the complainant as 14 years, the higher and lower ranges he would have given her and whether the higher range fell above 18 years old. Basically, the learned trial magistrate simply relied on what was written on the note (Exh. 4) as 14 years without critically subjecting it to analysis to see whether it was one that would give the court confidence that it was the correct age of the complainant, even if only an approximation.
31. This then brings in the defence by the appellant that the complainant’s grandmother had told him that she was 19 years old. This raised the statutory defence of deception and reasonable belief under section 8(5) and (6) of the SoA which 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.
32. The learned trial magistrate dismissed the appellant’s defence of deception and reasonable belief by finding that the complainant testified that she was forced to board the motorcycle on which the appellant picked her under the threat of being caned by her grandmother. The learned magistrate then went ahead to find that at this point, the appellant should have confirmed from the complainant whether she was agreeable to what she was being put into by her grandmother. This means that the learned trial magistrate believed the complainant’s evidence that she was not agreeable to the arrangement of her being married to the appellant. The learned trial magistrate also found that the appellant had not produced any evidence to support his assertion that the victim, her parents and grandmother were the ones that approached him and told him to marry the complainant. But what other evidence would he have tendered other than his word under oath? When he said that this is what happened, it became his word as against that of the complainant.
33. The appellant having stated that the victim together with her mother and grandmother had approached the appellant to marry her, it was upon the prosecution to rebut that evidence, which I find was not done. In that case, it is difficult for me to see how the learned magistrate then believed the complainant’s testimony that she was forced under threats of being caned to live with the appellant as his wife. The complainant’s conduct afterwards of staying with the appellant without any form of protestation does not support her assertion that she accompanied under coercion of her grandmother. Indeed, the appellant alluded to the issue of the complainant being aware of the plan to marry her off earlier, when he put it to her that she had even told her employer that she would be leaving for marriage. She denied that she had done so but agreed that she was indeed employed in a salon and that she was aware of the plans to marry her off. So, the appellant’s assertions that she could have been part of the plan to marry her off under the deception that she was 19 years old cannot be dismissed with the wave of a hand as being without merit as it is the complainant’s word as against that of the appellant. Considered critically, it creates a doubt in the mind of the court on the truthfulness of the complainant’s testimony that she never told the appellant that she was 19 years old.
34. The learned trial magistrate also found that the appellant failed to take steps to ascertain the correct age of the complainant as provided for under the law.
35. The complainant herself said she did not know her date of birth. It was therefore not possible for her to tell the complainant what her correct age was. The complainant was not in school and had never been to school. She was working in a salon. The learned trial magistrate has not indicated what else beyond this the appellant would have done to ascertain the complainant’s age. There is no indication from the prosecution’s case that from her physical stature, demeanor and appearance, the appellant or indeed anybody else looking at her would readily conclude that she was under the age of 18 years.
36. The Court of Appeal while dealing with the defence under section 8(5) and (6) of the SoA in the case of Wambui v Republic [2019] KECA 906 (KLR) as follows:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence could not be gainsaid. It was not in doubt that the age of the victim was an essential ingredient of the offence of defilement and formed an important part of the charge because the prescribed sentence was dependent on the age of the victim…
The totality of the evidence on age was that it did not possess the consistency and certainty that would have proved the exact date of the complainant’s birth beyond reasonable doubt. Therefore, had the trial court gone into an analysis of the evidence with the thoroughness that was required of it, it would probably have arrived at a different conclusion. In failing to engage in that exhaustive re-evaluation, it fell into error and the lingering doubts had to be resolved in favour of the complainant…
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.”
37. In the present case, I am not satisfied that the age of the complainant was proved as 15 years as stated in the charge or that she was under the age of 18 years because she could not tell her date of birth and the medical evidence of assessment of her age was not satisfactory.
38. The learned trial magistrate seems to have required the appellant to prove his statutory defence of deception and reasonable belief beyond a reasonable doubt, which was an error. I find that the appellant’s defence that he was deceived both by the complainant and her grandmother with the participation of her mother that the complainant was 19 years old and so he had reasonable belief that she was of that age was viable and therefore absolved him of blame in the case.
39. On account of the foregoing determinations, I find that it was unsafe for the trial court to convict the appellant for the offence of defilement.
40. Consequently, and for the above reasons, the appeal is allowed, the conviction of the appellant for the offence of defilement contrary to section 8(1) as read with 8(3) of the SoA is quashed and the sentence set aside. It is ordered that the appellant be set at liberty unless otherwise lawfully held.
41. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 2nd day of May 2025 in the presence of:
The appellant in person in Naivasha maximum prison.
Ms Vallerie for the respondent.
Johnson: Court assistant.
ANDAYI W. FRANCIS
JUDGE