https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10445

AMG v Republic (Criminal Appeal 23 of 2019) [2026] KEHC 10445 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 10445 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal 23 of 2019 JN Njagi, J June 24, 2026 Between AMG Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon.A.P.Ndege, Principal Magistrate in Hola Principal Magistrate’s Court Sexual Offence Case No.332 of 2016 delivered on 6/12/2018) Judgment 1.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act No.3 of 2006 and was sentenced to serve 15 years imprisonment. The particulars of the offence were that between 26th and 28th November 2016 at (name withheld) village in Tana River Sub County within Tana River County he intentionally and unlawfully caused his penis to penetrate the vagina of R.J. (herein referred to as the complainant), a child aged 15 years. 2.The Appellant was sentenced to serve 15 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal as per his amended grounds of appeal are that:1.The learned trial magistrate erred in law and facts in failing to find that the charge sheet was defective and contrary to the provisions of section 137 of the Criminal Procedure Code.2.The learned trial magistrate erred in law and facts in failing to find that the rights of the Appellant under Article 50(2) (j) of the Constitution of Kenya, 2010 were violated.3.The learned trial magistrate erred in law and facts in failing to find that the age of the complainant was not established by credible evidence.4.The learned trial magistrate erred in law and facts in failing to find that the medical evidence adduced before the court did not support the charge of defilement.5.The learned trial magistrate erred in law and facts in failing to consider the contradictions, inconsistencies and contradictions in the evidence of the prosecution witnesses.6.The learned trial magistrate erred in law and facts in failing to consider the time spent in custody contrary to section 333(2) of the Criminal Procedure Code. 3.The prosecution called 9 witnesses in the case while the Appellant when put to his defence defended himself and called one witness. Prosecution case 4.The case for the prosecution was that the complainant was at the material time aged 15 years and was living with her parents, her mother PW2 and her father PW3. The complainant had just done her KCPE examination. Her father PW3 was a distant cousin to the mother to the appellant. 5.It was the case for the prosecution that on the 26/11/2016 the complainant was at home when the Appellant approached her parents and told them that there was an organization at Bura that was sponsoring children for secondary education. The Appellant offered to take the complainant to Bura for an interview with the sponsors. The mother to the complainant agreed to the proposal and allowed the complainant to go with the Appellant for them to come back on 28/11/2016. The complainant went with the Appellant. 6.It was the evidence of the complainant that the appellant never took her to Bura but took her instead to his parents` home. While there the Appellant took her to his farm where he defiled her on 2 days during which time they were visiting the home of his mother and going back to the farm. They were later taken to the village headman, PW5 and then to Hola police station. The complainant was taken to Hola County hospital where she was examined by a clinical officer, PW9. A doctor at the same hospital completed her P3. 7.The case was investigated by PC Esther Mutemi PW6 of Hola Police station. She obtained the complainant`s birth certificate from the mother of the complainant, PW2. It showed that the complainant was born on 6/3/2003, thereby placing her age at the material time at 13 years. The Appellant was charged with the offence. 8.During the hearing, the doctor who completed the P3 form had left the hospital for treatment outside the country. A colleague doctor PW7 produced the P3 form as exhibit, P.Exh. 2. The investigating officer PW6 produced the birth certificate as exhibit, P.Exh.4. The clinical officer who examined the complainant PW9 produced the treatment notes and the Post Rape Care form as exhibits, P.Exh.1 and 4 respectively. Defence case 9.The Appellant in his defence stated in a sworn statement that he was a businessman. That in March 2016 he travelled to Mombasa. That he travelled back to his village on 28/11/2016 where he was met by his wife DW2. That on the same day at 9pm he was in his house with his wife and children when two Kenya Police Reservists went to his house and searched it while saying that they were looking for Mzee Hussein`s woman. They did not find her. He was taken to the village headman who told him that Mzee Hussein had reported to him that he, the Appellant, was with his daughter at his house. That the headman then entered into his house and came out with the complainant and her mother. They asked him where he had been with the girl. He denied that he had been anywhere with her. The father to the complainant and the village elder went aside and talked. They went back to them and the village elder asked him to pay Ksh.10,000/= for them to settle the issue before it reached the police. He refused. He was taken to the police station. He was placed in the cells and then charged in court. 10.It was further evidence of the complainant that his late father had a boundary dispute with the father to the complainant, PW3. The case had been done before Gaza elders and the father to the complainant was defeated. He threatened to put his father or his son in trouble. He took over the case after his father died. PW3 fabricated the evidence that he had defiled his daughter. 11.The Appellant`s wife DW2 testified that the Appellant was into the business of selling mangoes and lemons. That the Appellant took Mangoes to Mombasa and stayed there for 2 months and returned home on 28/11/2026. She on that day picked him at the bus stage and they went home. That in the evening some people went to their house. They asked her whether there was another woman in the house. The people went away with the appellant. She went and found him at the home of the headman. The headman told her that the appellant had refused to give out Sh.10,000/=. 12.The appeal was disposed of by way of written submissions. Submissions 13.The Appellant submitted that the charge was defective in that it was too general in terms of time as it did not indicate the specific time when the offence was committed. That the charge prejudiced the Appellant. 14.It was submitted that the trial court severally made orders for him to be provided with witness statements but this was not complied with until he gave his defence. Therefore, that his right under Article 50(2)(j) that required him to be informed in advance of the evidence the prosecution intended to rely on and to have reasonable access to that evidence was violated. 15.It was submitted that the age of the complainant was not established by any credible evidence such as a birth certificate, baptism card or oral evidence of a parent or guardian. That the complainant did not disclose her age to the court or when she was born. That the doctor who examined her only estimated her age at 15 years and did not give her exact age. 16.The appellant submitted that the complainant was not found with any injuries when she was examined. That though she was found with a broken hymen it was not freshly broken. Therefore, that the medical evidence did not support the defilement. 17.It was submitted that the complainant admitted that her father and the headman demanded for Ksh.10,000/= before the matter was taken to the police station. That the complainant`s mother admitted that her husband demanded for that sum of money but for the reason that his daughter had slept out and not for the reason of defilement. The Appellant submitted that he was charged because he failed to produce the money demanded. 18.The Respondent on the other hand submitted that the age of the complainant was proved by the birth certificate produced in the case. That the trial court had the opportunity to see the complainant and confirmed that she was a minor. That penetration was proved by the evidence of the complainant that the Appellant inserted his penis into her vagina which evidence was confirmed by the evidence of the clinical officer who examined her, PW9. It was submitted that the complainant identified the Appellant as the person who defiled her. That he was well known to her and there could be no mistake on identification. That he lied to her that he wanted to connect her with some sponsors and therefore took advantage of her vulnerability. The respondent urged the court to uphold the conviction and the sentence. Analysis and determination 19.This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.” 20.The Appellant submitted that the charge was defective in that he was charged with committing the offence on unspecified days. 21.Section 134 of the Criminal Procedure Code that gives a guide on the manner of drawing charge sheets provides as follows:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 22.The Court of Appeal in Benard Ombuna v Republic (2019) eKLR formulated the test of a defective charge as follows:…..the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence. 23.In Sigilani - v – Republic, [2004] 2 KLR 480 it was stated:“The principle of the law governing charge sheet is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence.”. 24.The charge sheet in this case clearly stated that the offence was committed between 26th and 28th November 2016 which was a period of 3 days. It is therefore not true that the time the offence was stated was not specified. There was no confusion in the charge. The same was clear and unambiguous. It could not prejudice the Appellant in putting up an appropriate defence. I thereby find that there was no defect in the charge. 25.On whether the charge was proved, the ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and proper identification of the perpetrator, see George Opondo Olunga vs. Republic [2016] eKLR. 26.The trial magistrate found that the age of the complainant was proved by the birth certificate produced in the case. Indeed, the complainant`s birth certificate showed that she was born on 6/3/2003. The incident was said to have taken place in November 2016 during which time the complainant was aged 13 years. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR held as follows on proof of age of a person:“... 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 documents, 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. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 27.In the present matter the age of the complainant was proved by the birth certificate. 28.On penetration on the complainant, the trial magistrate found that the complainant was a credible and believable witness. That the evidence of the complainant that she left her home with the Appellant for him to take her to some education sponsors was corroborated by her parents PW2 and PW3. That there was no grudge between the Appellant and the parents of the complainant. That the alibi defence of the appellant was raised in his defence did not dislodge the prosecution evidence. Therefore, that the charge was proved against the appellant. 29.Section 2 of the Sexual Offences Act defines penetration as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 30.The Appellant submitted that the allegation on defilement was not corroborated by medical evidence. Indeed, the medical evidence adduced before the court did not link the Appellant with the offence. Though the complainant was found with a broken hymen, there was no evidence that the same was freshly broken. It is however trite that lack of medical evidence is not fatal to a charge of defilement as the same can be proved by oral evidence of the victim or by circumstantial evidence, see the decision of the Court of Appeal in Kassim Ali v Republic Criminal, Appeal No. 84 of 2005. 31.Additionally, section 124 of the Evidence Act allows the court in defilement cases involving children to convict on the sole evidence of the child victim where the court is satisfied that the child is telling the truth and gives reasons for such a finding. 32.The complainant testified that the Appellant picked her from her parents` home for him to take her for an interview with some purported education sponsors. That he never took her to Bura to meet the said sponsors but instead took her to his village where he defiled her two times in the three days she stayed with him. 33.The evidence of the complainant that she left her home in the company of the Appellant was corroborated by her parents PW2 and PW3. The complainant stayed away from home for 3 days and came back on 28/11/2016. There was no reason to disbelieve the evidence of the complainant that the Appellant took her to his family farm where he defiled her on two times. I am in agreement with the trial court that the complainant was a credible witness. She told the truth that she was defiled by the Appellant two times in the three days that she stayed with him. 34.The Appellant raised an alibi that he was at the material time in Mombasa where he had travelled in the month of March 2016 and returned home on 28/11/2016. However, he never raised such an issue when he cross-examined the complainant and her parents. He did not raise it with the investigating officer. The same was raised at the tail end of the case and the police did not have an opportunity to investigate it. The alibi can only have been an afterthought. The trial court rightly dismissed the defence. 35.The Appellant alleged that the case was fabricated due to a boundary dispute with the father to the complainant. Again, the Appellant never raised the issue when he cross-examined the said witness. The defence was similarly an afterthought. 36.The mother to the Appellant was a cousin to the father to the complainant. The Appellant was well known to the complainant. He was positively identified as the perpetrator. The evidence adduced against the Appellant was overwhelming. The conviction and the sentence are upheld. 37.The Appellant said that he was in custody during the trial and the trial court did not consider the time spent in custody when sentencing him. I have perused the court file. The Appellant was indeed in custody during the trial. The trial court did not take into account the time spent in custody when sentencing the Appellant. I order that the sentence commences from the time of his arrest which is on 29th November 2016. 38.The upshot is that I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 24TH DAY OF JUNE 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Rahma