https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10284

Abdirahman v Republic (Criminal Appeal E095 of 2025) [2026] KEHC 10284 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 10284 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Appeal E095 of 2025 PK Rotich, J June 18, 2026 Between Abubakar Sineno Abdirahman Appellant and Republic Respondent (Being on Appeal from the Judgment and sentence of Hon. Alex Thuku (CM) delivered on 02/04/2025 in Mombasa CM SO Case No. E127 of 2022) Judgment 1.The Appellant Abubakar Sineno Abdirahman was charged with defilement contrary to section 8(1) as read with section 8(4) of the served offence Act no. 3 of 2006. The particulars of the offence are that of diverse dates between 1st September, 2022 to 10th October, 2022 at [Particulars Withheld] in Likoni Sub – county within Mombasa county, the accused intentionally and unlawfully caused his penis to penetrate the vagina of LWJ a child of age 13 years. 2.The trial Magistrate considered the evidence of 4 prosecution witnesses and 1 defence witness and found the appellant guilty of offence of defilement contrary to section 8(1) as read with section 8(4) of the served offences Act No. 3 of 2oo6.Upon conviction, the accused was sentenced to serve 19 years imprisonment taking into consideration the time the accused spent in custody. 3.Being aggrieved by the conviction and sentence by the trial court, the appellant preferred this appeal against the entire judgement of the court. The appeal is based on the following grounds;-1.That the learned Magistrate erred in Law and fact for not according the appellant a fair hearing by relying on the evidence of birth certificate to prove age as ingredient of defilement which was just marked for identification but was never produced as an exhibit.2.That the learned trial Magistrate erred in Law and fact by failing to note that penetration was not proved beyond reasonable doubt.3.That the trial Magistrate erred in law and fact by not considering that the prosecution case was not proved beyond reasonable doubt.4.That the learned trial Magistrate erred in Law and fact by failing to note that the sentence was harsh and excessive despite the presence of the defence of Section 8(5) of the Sexual Offences Act. 4.PW1, LW who is the complainant stated she was born on 21.7.2008 and was a class 8 pupil. PW1, further, stated the accused was their neighbour and they lived in single rooms. Their house was the 1st room, PW1 stated and that of the accused was the last on their row. 5.In the month of September, 2022 on a Sunday, PW1 stated, she was in their house asleep and she got up he got out to go to the toilet. Her mother was in their house. 6.On her way back from the toilet, PW1 stated, she met Abubakar (appellant) who pulled her into his house. Abubakar stayed alone in his house.PW1, further, stated and that was the first time she got into the appellant’s house. 7.While inside the accused person’s house, PW1 stated, the appellant pulled down her trouser and put his penis inside her vagina. He did this, PW1 stated, on his mattress. 8.When the accused heard footsteps outside, PW1 stated, he let her go and she dressed up and got out but she met her father at the accused person’s door who pushed her back and closed the door.PW1also stated her mother also locked the appellant’s door from outside with a padlock. 9.The PW1 and the appellant stayed together in the appellant’s PW1 stated, until the police came, picked both of them and led them to Vijiweni Police Station where she was interrogated and she revealed to the police what happened. 10.PW1 stated she started having sex with Abu (appellant) in September and that when they were got up by her dad, it was their sixth time. 11.PW1 also stated that she used to sneak out of their house pretending she had gone to the toilet to have sex with the accused. 12.Finally, PW1 stated that the accused knew she was a pupil and saw her going to school. 13.On cross-examination, PW1 stated, the appellant had sex with her six (6) times in his house at night between September and October. PW1, further, stated the accused lured her by telling her that he loved her. 14.PW2, Jackson Kamore Kihonzi, stated that he lived in Kona Mbaya, Likoni with his wife Teresia Munywa and their 3 children. PW1, further stated that PW1 is his daughter and the PW1 was in class 7 in 2022. PW2 also stated that the accused was known to him as he was their neighbour. 15.On 10.10.2022, PW2 stated, he was at home and at around 4. AM he got out and went to the toilet. When he returned to his house, PW1 stated, his daughter PW1 also left the house and when she did not return after 10 minutes he went to check on her and she was not in their toilet. 16.PW2, further, stated the appellants house was completely locked. He, however, peeped inside and saw the appellant caressing his daughter. Thereafter, PW2 stated, with his wife, they locked his daughter and the appellant inside the accused person’s house until the police arrived at the scene and arrested the appellant. 17.PW2, further, stated that, with his wife, they accompanied their daughter to hospital and gave the police her birth certificate showing her date of birth is 21.7.2008. 18.On cross-examination, PW2 stated the accused person’s door was not locked and that he did not find him the act of sex but saw him touching his daughter. 19.PW3, Stephen Kalau, a clinical officer based at Likoni Sub – County Hospital recalled that on 10.10.2022 the complaint aged 12 years went to the hospital accompanied by police officers and her parents. 20.On examining the complainant genitalia, PW3 stated, he found her hymen was broken with an old scar and she had numerous epithelial cells being evidence of laceration and infection. 21.PW3, further, stated the that the complainant had mucoid vaginal discharge indicative she was sexually active. PW3, also stated the old scar the complainant had was indicative of repeated sexual activity by the minor. On cross– examination PW3, stated that penetration was one cause of hymen breaking. 22.PW4, No.246976, Police Comissioner Jaliwa Kazungu, the investigating officer, testified that he was able to ascertain the complainant was 13 years as she was born in 2008. Her birth certificate was produced and marked P Exhibit No. 1. 23.The Appellant stated on the date in question herein he was at home and he heard people making noise outside his house. When he opened, the appellant stated, a girl entered and also the father came. 24.On cross-examination, the appellant confirmed the girl was his neighbour and that he knew her mother. He also stated knew the complainant was a pupil and that she was a child. 25.The 1st issue for determination in this matter is whether the trial magistrate erred in law and fact in finding the appellant guilty of defilement. The 2nd issue is whether the sentence meted on the appellant was harsh and excessive 26.In the case of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated:“The critical ingredient forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant.” 27.The birth certificate of the complainant produced in Court (P-Exhibit No. 1.) shows she was born on 21st July, 2008. The alleged defilement herein occurred on diverse dates between 1st September to 10th October, 2022.She was, therefore, aged 14 years at the time. 28.On proof of penetration, the complainant stated that in the month of September, 2022 on a Sunday, she woke up from sleep and got out of their house to go to the toilet. On her way back, PW1 stated, she met Abubakar (appellant) who pulled her into his house. PW1, further, stated Abubakar stayed alone in his house. 29.While inside the accused person’s house, PW1 stated, the appellant pulled down her trouser and put his penis inside her vagina and they had sex on the appellant’s mattress. 30.When the accused heard footsteps outside, PW1 stated, he let her go and she dressed up and got out she met her father at the accused person’s door who pushed her back and closed the door. The complainant’s mother and father locked the complainant and the accused inside the appellant’s house until the police came and arrested the appellant. 31.Before they caught, PW1 stated, she started having sex with the appellant in September and that when they were got up by her dad, it was their sixth time. 32.PW1 revealed that she used to sneak out of their house pretending she had gone to the toilet to have sex with the accused. 33.It is very clear the appellant penetrated the appellant’s vagina with The evidence of PW1 is corroborated by PW3 a clinical Officer who stated that on examining the complainant genitalia, he found her hymen was broken with an old scar. 34.The clinical officer, further, stated the that the complainant had mucoid vaginal discharge and old scar are indicative the complainant had repeated sexual activity. 35.On whether, the prosecution witnesses identified the accused, it is not in dispute the accused was their neighbour and lived in the same plot with them. 36.The appellant was arrested by the police inside his house, the scene of crime, with the complainant. There is, therefore, no iota of doubt that the accused and the complainant knew each other very well and there was recognition. 37.The submissions of the appellant that under Section 8(5) of the Sexual Offence Act that complainant conducted herself as an adult who knew what was going by sneaking out of their sex with him for 6 times does not hold water. The appellant himself admitted that he knew the accused was a pupil and that she was a child. 38.Based on the evidence on the law, it my finding the prosecution herein proved the charges of defilement under section 8(3) against the appellant beyond any reasonable. 39.Conviction on the aforesaid charge attracts mandatory minimum sentence of 20 years. The contention by the appellant the sentence meted on him herein is harsh and excessive has no legal basis. 40.The upshot of the court’s findings above is that this appeal lacks merit and the same is dismissed.Right of Appeal within 14 days. DATED, SIGNED AND DELIVERED ONLINE VIA MS TEAMS THIS 18TH DAY OF JUNE 2026HON. P. K. ROTICHJUDGEIn the presence of:Appellant in personMs.Cherop h/b for Mr. Sirima for DPP