https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9547

**Republic Of Kenya** **In The High Court Of Kenya At Mombasa** **Criminal Appeal No. E080 of 2025** **Eddyson Mwangombe Abdallah *alias* Eddy…………….……………..……Appellant** **Versus** **Republic………………………………………….……………………………Respondent** *(Being an appeal against the original conviction and sentence in Sexual Offences case number E160 of 2021 of the Chief Magistrate’s Court at Shanzu by Hon. A. K. Mwicigi (CM) delivered on 12 June 2025)* **Judgment** 1. Eddyson Mwangombe Abdallah *alias* Eddy (the Appellant) was found guilty of committing the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 2 of 2006. The particulars of the offence are that the Appellant on 13 November 2021 at Shanzu, Shimo la Tewa area in Kisauni sub county within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of G.M.K, a child aged 7 years. He was sentenced to life imprisonment. 2. Aggrieved by the conviction and sentence, the Appellant has preferred an appeal to this court on the following amended grounds of appeal: 1. *That the learned trial magistrate erred in law and fact by holding that the offence of defilement was proved but failed to note that the ingredients of the offence were not proved by the prosecution; and* 2. *That the learned trial magistrate erred in law and fact when he failed to consider the defence evidence given by the Appellant alongside other prosecution evidence.* 3. The duty of this court as a first appellate court is to undertake a fresh evaluation of the evidence presented before the trial court and to draw an independent conclusion from that evaluation. This court is, however, aware that it neither saw nor heard the witnesses who appeared before the trial court. This duty has been firmly recognised in case law and more prominently in ***Okeno v Republic [1973] EA 32****).* 4. The prosecution called six witnesses in support of the case against the Appellant while the Appellant testified in person and did not call any witnesses. PW1 (Joseph Eduardo) was sworn in and testified that the Appellant is known to him as a cousin to an acquittance by the name Katana whom he has known for a year. He testified that Katana was his neighbour and he knew his two minor children, a boy and a girl, aged approximately 6 and 9 years’ old at that time. He testified that on 13 November 2021 he was at home resting when he heard screaming while saying “uncle unaniumiza”. The cries concerned him and he decided to check what was happening at his neighbour’s house which as separated by a plywood. It was his testimony that he removed a nail on the wall secretly and on peeping through the hole he saw the Appellant holding the complainant at his chest while her lower part was undressed. He further testified that the Appellant was also undressed half-way. Upon seeing this, the witness testified that accompanied by his wife they went and knocked at the neighbour’s door and upon being let into the house they inquired from the Appellant what he was doing to the complainant. It was his testimony that the complainant disclosed to his wife that she had been defiled by the Appellant while the Appellant asked them to keep things quiet so that the officers could not hear. The witness further testified that the prison officers heard the commotion and came to see what was happening and the father of the complainant was called by one of the officers. Upon arriving 45 minutes later, the complainant’s father took her to hospital. He stated that he recorded his statement at Bamburi police station. 5. PW2 (Hassan Katana Ndolo) was sworn in and testified that the Appellant is his cousin. He testified that on 13 November 2021 in the evening he left his house to go visit his parents at Rabai. He stated that he left his children at home in the care of the Appellant. He further testified that at around 11.00 pm he was called by a fellow prison officer (Samuel Mwita) who informed him that he had found the Appellant having sex with the complainant. He testified that upon being informed, he rushed home with his elder brother and another person. Upon reaching home, he testified, he found the complainant with Mwita and the Appellant had been apprehended by fellow officers. He testified that he was informed by his friend Chacha Joseph (also called Baba Dalton) that he had heard his daughter crying “unaniumiza” which prompted him to check through the wall. He testified that he saw the hole his friend Chacha had used to peep into his house to see why his daughter was crying. The witness further testified that he spoke to his daughter who informed him that uncle did “tabia mbaya” to her. It was his testimony that they went to the police station where the Appellant was placed in the cells and that the complainant was also taken to Coast General Hospital where it was confirmed that she had been defiled. PW2 testified that the complainant was born on 1 November 2018 and he produced her birth certificate as exhibit 1. 6. On cross-examination, the witness testified that he did not know of any grudge between the Appellant and Chacha and he did not investigate to know if there was any. 7. PW3 was the complainant. The trial court conducted a *voire dire* examination and noted that the complainant was withdrawn and shy and that she may not be able to grasp the substance of an oath. The court directed that she gives unsworn evidence. 8. PW3 testified that she knew the Appellant who lived with them for some time. She also testified that there is a day they were left under his care and he did bad manners to her in the house. She testified that the Appellant took her from the bedroom to the sitting room, placed her on the couch, removed her clothes and did bad manners to her on the private parts (PW3 pointed at her private parts). She further explained that the Appellant used his private part – the one he uses to urinate to do bad manners to her where she urinates from. She described that the Appellant was facing up while she was on top of him. It was her testimony that she told him to leave her alone because she felt pain and he was hurting her but it is only after Baba and Mama Dalton came when the Appellant left her alone. She further testified that she told Mama Dalton what happened and her father was called and he came home. She also testified that other people came and there were police officers. PW3 also testified that she was taken to hospital and was checked by a doctor. She pointed at the Appellant as the person who did bad manners to her. 9. On cross-examination, PW3 testified that the Appellant had done something bad to her before. She testified that the Appellant had beaten her and pinched her. 10. PW4 (Samwel Mwita) was sworn in and testified that on 13 November 2021 at about 2300 hours he was at Shimo la Tewa lines sleeping when he heard noises outside. He opened the door and found the Appellant being interrogated and he was informed that he had defiled a neighbour’s child. He testified that he called the child’s father (Katana) who was his workmate and informed him about the incident. PW4 testified that Katana broke down when he arrived and wanted to attach the Appellant but he restrained him. He testified that the Appellant was taken to Bamburi police station while the complainant was taken to hospital. He stated that he knows the Appellant who had stayed with Katana for about a year. 11. On cross-examination, PW3 stated that he heard screams and noises outside and he found people beating the Appellant and they claimed that he had defiled his niece. He also testified that he informed Katana and restrained him from beating the Appellant when he arrived. 12. PW5 (Kasey Elizabeth Kyambwa – the investigating officer) testified that she is a police officer attached to Bamburi police station, gender office where she had worked for four years. She was assigned this case on 14 November 2021 and she noted the Occurrence Book report which indicated that the matter had been reported by one Hassan Ndolo Katana that his daughter G.M.K, a minor aged 7 years old, had been defiled by a close relative one Eddison Mwangome Abdalla – the Appellant. She later took the complainant to Coast General Hospital for checks and the minor was given painkillers and drugs to prevent HIV. PRC and P3 forms were filled at the hospital. The witness further testified that she recorded statements of witnesses and the complainant. The witness also visited the crime scene which was at the prison quarters. She noted that the houses were many and they were close to each other. The house where the offence took place was a one-bedroom house. The witness positively identified the Appellant in the dock as the suspect who had been arrested in relation to this offence. The witness produced the complainant’s original birth certificate and a copy which showed that the complainant was born on 1 November 2014. The same was marked PEX1. 13. PW6 (Dr. Gabriel Mungola) who testified that he works at Coast General Hospital. The witness produced a P3 form filled by Dr. Fahima Swaleh on 2 December 2021 and stated that he was familiar with her handwriting and signature having worked with her for six years before she left for post-graduate studies in 2022. The trial court noted that the Appellant did not have an objection. The witness testified that the injuries were about two weeks old at the time of examination. He also indicated that there was fresh laceration at 6 o’clock on the vagina, the hymen was broken and the vagina had reddened. No discharge was noted. The PRC, the witness testified was filled on 15 November 2021 by a nurse by the name Loice Njiru who had since been transferred. It indicated a fresh laceration at 6 o’clock and a broken hymen. The witness produced the P3 form as PEX1. The treatment book was produced as PEX4. This marked the close of the Prosecution case. 14. The Appellant testified as DW1. He averred that the charges against him were not true and stated that on the material day – 13 November 2021, he was at his cousin’s residence within Shimo la Tewa prisons. He testified that he was left with his cousin’s minor children that evening and after he had prepared a meal for them the younger one went to sleep while the complainant was left to clear the table. He testified that he left to fetch water and while outside the house he heard the complainant shouting “si kitu! Si kitu!” prompting him to rush back to the house where he met one Joseph Chacha who was a neighbour and his wife already in the house. He testified that his inquiries on what was going on fell on deaf ears but when he followed them outside to find out what was going on, a group of people told him to lie on the ground and started beating him. He further testified that one Samwel Mwita appeared and asked them to stop beating him and at that point Mwita contacted his cousin and asked him to return home. He was later taken to Bamburi police station when the cousin arrived. 15. On cross-examination, the Appellant confirmed that he had charge of his cousin’s two minors – the complainant and her younger brother. He also confirmed that the walls of the houses are made of wood but couldn’t confirm if one can see the other side of the wall. The Appellant confirmed that he knew Chacha who was his motorcycle operator. He testified that he spotted Chacha at the entrance to the house while Chacha’s wife was inside the house. He denied hearing the complainant utter the words “unaniumiza” although he averred he was about 10 metres from the house. The Appellant further testified that he had no differences with his cousin – the complainant’s father but Chacha was his enemy and he had framed him. The Appellant closed his case. 16. The Appellant filed submissions in support of his grounds of appeal addressing principally two issues being: whether the charge of defilement was proved and whether his defence was considered alongside the prosecution evidence. The Director of Public prosecutions did not file any submissions despite being granted time to do so. 17. The resolution of the first issue will also address the second issue raised by then Appellant. To prove a charge of defilement under Section 8(1) of the Sexual Offences Act, three key ingredients must be satisfied being: the age of the complainant; proof of penetration; and the identity of the perpetrator. I will evaluate these ingredients and weigh them against the evidence that was given before the trial court. **Age of the Complainant** 1. Proof of the age of a victim is a fundamental ingredient of the crime of defilement. The same can be proved in various ways being through testimony, documentary proof or medical test. Documentary evidence demonstrating the age of a complainant is considered to be the most reliable. In ***[Mwalongo Chichoro Mwanjembe vs. Republic](https://kenyalaw.org/akn/ke/judgment/keca/2016/183%22%20%5Ct%20%22_blank)***(2016) eKLR the court stated as follows in regard to proving the age of the victim: *The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.* 1. The evidence before the trial court on the complainant’s age was given by her father as well as through documentary evidence being the complainant’s birth certificate. The testimony of the complainant’s father who testified as PW2 was that the complainant was born on 1 November 2018. The documentary evidence being the complainant’s birth certificate which was produced by PW5, however, indicates that the complainant was born on 1 November 2014. The medical examination report also indicates that the complainant was aged 7 years’ old at the time she was examined. Even though the complainant’s father indicated in his testimony that the complainant was born in 2018, this seems to have been in error as the birth certificate indicates the date of birth as 1 November 2014. The complainant was, therefore, aged 7 years at the time of the incident. It is my finding that the age of the complainant was sufficiently proved by the prosecution. The same was not challenged and has not been challenged on appeal. **Proof of Penetration** 1. Section 2 of the Sexual offences Act No. 3 of 2006 defines penetration as, “…*the partial or complete insertion of the genital organs of a person into the genital organs of another person.*” 2. The complainant’s testimony was to the effect that the Appellant did “bad manners” to her on her private parts. The medical evidence confirmed that there were injuries on the complainant’s vagina, the hymen was broken and the vagina had reddened. The medical evidence presented also confirmed that these injuries were fresh. 3. The complainant’s testimony as corroborated by the medical evidence confirms that there was penetration. Although the complainant did not state in uncertain terms that the genitalia of another person was inserted into her genitalia either partially or wholly, Courts have recognised that the traumatic experience of minors who have been subjected to sexual violation inhibits their ability to describe exactly what happens. The difficulties are not only linguistic but also psychological and emotional making them shy and confused. It is for this reason that courts have accepted that certain vocabulary which is familiar with children of tender years like doing “bad manners” is acceptable in describing the act of penetration. (See, ***Muganga Chilejo Saha v. Republic [2017] eKLR***). 4. The Appellant contests the trial court’s finding that there was penetration on the basis that the complainant testified that the bad things the Appellant had done to her was beating her and pinching her. It is the Appellant’s case, therefore, that penetration was not proven as none of the medical personnel who examined the complainant testified. First, the complainant’s testimony upon being cross-examined by the Appellant that he had beaten her does not discount the clear testimony that the Appellant did “bad things” to her private parts which is corroborated by the medical evidence. On the question of whether the medical evidence produced by Dr. Mungola was admissible, the legal issue arising is whether a person who was not the maker of the documents in question being the P3 form and the treatment notes could produce the documents in court. Although the trial court record indicates that the Appellant did not object to production of the medical reports, this court notes that the Appellant was unrepresented and thus needs to satisfy itself that such evidence was properly admitted. 5. The law allows production of documents by another person other than the maker when the maker of such documents cannot be reasonably found or whose attendance cannot be procured without an amount of delay of unreasonable expense. In such a case, the Prosecution is at liberty to find a similarly placed expert who is familiar with the documents and the author thereof to produce the documents. Section 33 of the Evidence Act provides as follows in this regard: *Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases:* *…* *b) made in the course of business* *when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;* 1. Section 33, therefore, allows the admission of evidence in circumstances where a court must be satisfied that the maker of the evidence cannot appear before court to produce the evidence. It is a condition precedent that before a court allows such evidence to be produced it must be satisfied that the circumstances for the non-appearance of the maker have been sufficiently explained. In this case, Dr. Mungola produced P3 form on behalf of Dr. Fahima Swaleh, whom it was explained was away for further studies. Dr. Mungola testified that he had worked with Dr. Swaleh who had also trained under him for some years and was familiar with her handwriting and signature. Dr. Mungola also produced the PRC form which was authored by Loice Njiru whom, he explained, had been transferred. I am satisfied that the conditions precedent under Section 33 were met in the production of the medical evidence on behalf of Dr. Swaleh and Ms. Njiru. 2. Furthermore, Section 77(1) of the Evidence Act allows for admissibility of documents authored by a government officer as long as the same can be ascertained to be authentic. It provides, *“In Criminal proceedings any document purporting to be a report under the hand of a government analyst, medical practitioner...or anything submitted to him for examination or analysis may be used in evidence.”* 3. The Evidence Act, therefore, provides for a mechanism for admissibility of government reports incase the makers of such documents are not available to produce the reports. When read together, Section 33 and Section 77(1) of the Evidence Act allows the admission of evidence of makers whose unavailability has been sufficiently explained to the satisfaction of the Court. The Court, in any case, retains the power to summon the makers of such documents, in the interests of justice. (See, [***Kenneth Mwenda Mutugi v Republic [2019] KEHC 9861 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/9861/eng%402019-02-18)**)** 4. The trial court record confirms that Dr. Mungola authenticated the medical reports that he produced in evidence as having been authored by his colleagues who were not present to produce them. He confirmed that he was familiar with their handwritings and signatures having worked with them for some time. The medical evidence was, therefore, properly admitted and the same was consistent in corroborating the complainant’s testimony that penetration occurred. **Proof of the Perpetrator** 1. On whether the perpetrator was identified, the testimony of the complainant clearly identified who the perpetrator was. The complainant’s testimony indicated that the perpetrator was the Appellant who was staying with the complainant’s family at the time. This evidence was corroborated by the evidence of PW1 (Joseph Chacha) also known as Baba Dalton who was their neighbour and who testified that he was able to see the Appellant through an opening in the plywood that separated his house and the house where the incident happened. It was PW1’s testimony that he took steps to ascertain what was going on in his neighbour’s house upon hearing the complainant screaming “uncle unaniumiza”. Further, PW1’s testimony corroborated the complainant’s testimony that the Appellant undressed her and placed her on top of him when he defiled her. PW1 testified seeing the Appellant holding the complainant on his chest while she was undressed and he was also undressed. The testimony of the complainant as corroborated by the testimony of PW1 forms consistent and credible evidence of who the perpetrator was and that is the Appellant. 2. The Appellant, however, submits that PW1 was his enemy and that is why he implicated him. I find this testimony to be without any basis for two reasons. First, the Appellant testified that PW1 was his *boda boda* rider/operator meaning that he utilized his services as a *boda boda* rider. Second, the averment that PW1 was an enemy was not established beyond merely stating that he was an enemy. The Appellant’s testimony before the trial court did not establish the genesis of the alleged bad blood that would motivate PW1 to frame him as alleged beyond merely saying he was an enemy. Besides, the evidence before the trial court established a consistent narrative that the complainant was defiled and she was defiled by the Appellant. I find that the conviction entered by the trial court was safe. There is, consequently, no basis for interfering with the findings of the trial court. 3. Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides, *“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.*” This provision is in recognition of the seriousness of the offence of defilement. The trial court rightly observed that there is no wiggle room and the sentence, as provided in the law, must be handed to one who has been found liable under the law. The sentence of life imprisonment handed to the Appellant was a lawful sentence and the same is upheld. The Appellant is a sexual predator who preyed on a child who was left in his care. It is only the hope of this court that he takes the time to reflect on his conduct and perhaps this sentence may also serve as a deterrence to other would-be predators. 4. In the end, the appeal is without merit and the same is dismissed. **Judgment Dated and Delivered Virtually this 2nd day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Nabil M. Orina** **Judge** **In the presence of:** **The Appellant** **Hamza – Court Assistant**