https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11584

Hazizi v Republic (Criminal Appeal E135 of 2024) [2026] KEHC 11584 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 11584 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E135 of 2024 JN Njagi, J July 8, 2026 Between Andrew Barowa Hazizi Appellant and Republic Respondent (Appeal from Original Conviction and Sentence in Sexual Offence Case No. E050 of 2021 of the chief Magistrate’s Court at Kilifi Law Court- J. M. Kituku, SPM dated 17th March, 2023) Judgment 1.The appellant was convicted of the offence of defilement contrary to (section 8(1) as read with Section 8(4) of the Sexual Offences Act No.3 of 2006 and was sentenced to serve 15 years imprisonment. The particulars of the offence were that on diverse dates between 1st September, 2020 and 31st September, 2020 at (name withheld) village in Ganze sub county within Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of T.Y.(herein referred to as the complainant), a child aged 17 years. 2.Aggrieved by the sentence and the conviction the Appellant lodged an appeal on the following amended grounds of appeal:1.That the learned trial magistrate erred in law and in facts by failing to consider that the evidence of PW1 was doubtful.2.That the learned trial magistrate erred in law and facts by failing to consider that the medical evidence presented before the trial court did not prove penetration on the complainant.3.That the learned trial magistrate erred in law and facts by failing to consider the strong defence evidence of the appellant. Case for prosecution 3.The evidence of the complainant PW1 was that she was a primary school pupil in class 7. That she met the appellant in July, 2020 who started to seduce. She later gave in to his advances. That in September, 2020 they had sex at his family farm and they also met in November, 2020 and had sex. She found out she was pregnant in October, 2020. In February, 2021 she informed her brother Philip that she was pregnant and that the appellant was responsible. Her brother reported the matter to the area chief who later reported to the police at Bamba Police Station. 4.The complainant was initially attended to at Bamba dispensary where she was found pregnant and her Post Rape Care form was completed. She was later examined by a Clinical Officer at Kilifi county hospital found her with a broken hymen. Laboratory tests were done that revealed that she was pregnant. The clinical officer completed her P3 form. The incident was said to have occurred in September, 2020. During the hearing of the case in court, a clinical officer at Kilifi county Referral Hospital PW3 produced the treatment notes, the P3 form, the PRC form and acknowledgment of birth card as exhibits. 5.The case was investigated by PC Amukara PW3 of Bamba police station. It was his evidence that the matter was reported on 23/2/2021 by the complainant and her brother. The complainant reported that she had been defiled by the appellant. She was issued with a P3 Form which was filled together with a PRC form. She was aged 17 years at the time. The appellant was arrested and charged with the offence. Defence case 6.In his defence the appellant stated in an unsworn statement that he was aged 23 years. That he did not commit the offence. He sought to have the charges against him dismissed. Submissions. 7.The appellant in his submissions stated that the learned trial magistrate erred in convicting him in an offence where the testimony of the complainant fell short of the provisions of Section 124 of the Evidence Act. According to him, the prosecution failed to discharge the burden of proof to the required standard. He relied on the case of John Mutua Musyoka vs Rep Criminal Appeal No. 11 of 2016 eKLR where the court held as follows; ‘it appears to us that the appellant was convicted on mere assertions. The school administration suspected mischief on the part of the appellant. We think the complainant was left with no other choice but to conjure up defilement story to avoid probable sanctions.’ 8.It was his submission that the burden of proof which is vested on the prosecution ought not to have shifted to the appellant. He relied on the provisions of Sections 107,108 and 109 of the Evidence Act submitting that the ingredient of penetration was not proved to the required threshold and as such the doubts in the prosecution’s case ought to have been resolved in his favor. 9.The Respondent on the hand submitted that the prosecution proved all the elements of the offence of defilement of age, penetration and identification beyond reasonable doubt. Further that the conviction was sound and the sentence meted was lawful. Analysis and Determination 10.This being a first appeal, the court has a duty to re-evaluate and re-consider the evidence on record and come to its own conclusion. The court should also appreciate the fact that unlike the trial court it did not have the advantage of seeing and hearing the witnesses. These principles were re-stated by the Court of Appeal in the case of Kiilu & another v Republic [2005]1 KLR 174, thus:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. 11.The elements of the offence of defilement that the prosecution is required to proof beyond reasonable doubt are: proof of the age of the victim, proof of penetration and identity of the perpetrator, see the Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013. 12.The appeal is based on the grounds that the evidence of the complainant was doubful; that penetration was not proved and that the trial court did not consider the Appellant`s defence. 13.The trial court in convicting the Appellant of the offence held that the age of the complainant was proved by her birth notification card. That the fact that the complainant was pregnant corroborated her evidence that she had engaged in sexual intercourse. That the complainant was candid in her evidence and that that there was no reason for her to falsely implicate the Appellant with the offence. 14.I have re-evaluated the evidence adduced before the trial court and considered it against the grounds of appeal and the submissions tendered in the appeal. 15.Starting with the element of the age of the complainant, the law is that the age of a person can be proved in various ways. In the case of Mwalongo Chichoro Mwajembe -Vs- Republic, Msa Cr.App. No. 24 of 2015 (UR), the Court of Appeal held as follows:“... 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.” 16.The evidence of the complainant that she was aged 17 years was corroborated by the evidence contained in her Birth Notification card that showed that she was born on the 8h March 2003. It was therefore proved that the complainant was of the age of 17 years at the time the offence was committed. 17.On the element of penetration, the same is defined in Section 2 of the Sexual Offences Act as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 18.The prosecution had the duty to establish that the complainant was partially or fully sexually penetrated by the Appellant. 19.Penetration can be proved by way of oral evidence of the victim or by circumstantial evidence which can be corroborated by medical evidence, where available. In the case of Kassim Ali v Republic (2021) eKLR the Court of appeal stated that;“….the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence.” 20.The clinical officer who examined the complainant found her with missing a hymen but there was no evidence that it was freshly broken. She was also found to be pregnant. 21.The Appellant submitted that there was no DNA test conducted in the case to prove that he was the father of the complainant`s baby. The law is however that defilement is proved by way of oral evidence and not by necessarily by way of a DNA analysis. This fact was emphasized by the Court of Appeal in the case of AML vs. Republic (2012) eKLR, where the court authoritatively stated that:“The fact of rape or defilement is not proved by D.N.A. test but by way of evidence.” 22.There was however, no medical evidence connecting the Appellant with the commission of the offence. That left the evidence of the complainant as the only evidence in the case that the Appellant penetrated her. 23.Section 124 of the Evidence permits the court in sexual offences involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for making such a finding. 24.The complainant narrated in her evidence that she met the appellant in July, 2020. That he seduced her and she gave in to his advances. That in September, 2020 they had sex at his family farm. That she missed her menses in October, 2020.That they met again in the month of November, 2020 and had sex. In February, 2021 she informed her brother that she was pregnant and they reported to the police. 25.The trial magistrate believed the evidence of the complainant that she engaged in sex with the Appellant. I am in agreement with the trial court that the complainant had no reason to tell falsehood against the Appellant who was her boyfriend. There was no grudge between them. The fact that the complainant did not report the matter until when she was found to be pregnant does not prove anything against her. The Appellant`s defence was a mere denial. The trial court did not at any time shift the burden of proof to the appellant. I find that the trial court was right in dismissing the appellant`s defence. 26.The upshot is that the case against the Appellant was proved beyond reasonable doubt. I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 8TH DAY OF JULY, 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Rahma