https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10526

Balani v Republic (Criminal Appeal E042 of 2024) [2026] KEHC 10526 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10526 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E042 of 2024 JN Njagi, J July 10, 2026 Between Hassan Jillo Balani Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. B.Kabanga, Senior Resident Magistrate in Hola Senior Principal Magistrate’s Court Sexual Offence Case No.E008 of 2023 delivered on 12/8/2024) Judgment 1.The Appellant was convicted for the offence of defilement contrary to Section 8 (1) as read with section 8(4) of the Sexual Offences Act No.4 of 2006. The particulars of the offence were that on diverse dates in the month of January 2023 and 22nd February 2023 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 A.H.A. (herein referred to as the complainant), a child aged 16 years. 2.The Appellant was sentenced to serve 20 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. 3.The grounds of appeal as per the Appellant`s amended grounds of appeal are that;1.That the learned trial magistrate erred in law and facts in failing to find that the charge sheet as laid before the court was incurably defective and contrary to section 137 (f) of the Criminal Procedure Code.2.That the learned trial magistrate erred in law and facts in failing to find that no forensic D.N.A test was conducted so as to identify the person who impregnated the victim contrary to section 34 and 36 of the Sexual Offences Act.3.That the learned trial magistrate erred in law and facts in failing to consider that the KPR Officers who arrested the appellant were never called to testify before Hon. Court contrary to section 150 of the Criminal Procedure Code.4.That the learned trial magistrate erred in law and facts in failing to consider the defence of the appellant. Case for prosecution 4.The case for the prosecution is that the complainant was at the material time a primary school pupil in class 8. That in December 2022 she saw the Appellant at the home of a neighbour and got attracted to him but she did not tell him. That on a subsequent day she was attending a function in the evening when she met the Appellant. He called her aside and he told her that he loved her. She also told him that she loved him. She asked him for his phone number. He gave her. 5.That later she called him through her mother`s pnone number and asked him to meet her in the forest near Dafoma. That they met there. She told him that she wanted to have sex with him. They engaged in sex. That after a few days she called him again and told him that she wanted to have sex with him. They met him and they engaged in sex in the bush. They had sex in the bushes several times after that. In total they engaged in sex on 5 occasions. She later missed her periods and realized that she was pregnant. She informed the Appellant. Later her mother asked her whether she was pregnant and she confirmed it. Her mother informed her father who reported to the chief. She was taken to the police and then to hospital. 6.The mother to the complainant PW2 testified that in the month of June 2023 she saw signs of pregnancy on the complainant. On the 19/6/2023 she asked her whether she was pregnant and she confirmed it. She mentioned Hassan Jillo as the one responsible for her pregnancy. Her husband reported to her school head and he was referred to the chief. They reported to the chief. The Appellant was summoned. He was taken to the police station. 7.A clinical officer at Hola county hospital PW3 stated that the complainant went to their hospital in the company of a police officer on 6/7/2023 with a complaint of having been defiled. She was seen by other officers at the hospital. Tests were conducted on her and she was found to be 7 months pregnant. Later on the 7/7/2023 he, PW3, examined her for the purposes of completing her P3 form and Post Rape Care form. He found her with a long time broken hymen with an old scar. He completed her documents. 8.The case was investigated by PC Babusa PW4 of Hola police station. It was her evidence that the complainant was taken to the police station by her parents. They were in the company of the appellant and KPR officers. She escorted the complainant to Hola Referral Hospital where she was examined and found to be pregnant. Her P3 form was completed. The Appellant was charged with the offence. 9.During the hearing the clinical officer PW3 produced the P3 form, the ultra sound report and the Post Rape care form report as exhibits, P.Exh.2,3 and 4 respectively. The investigating officer PW4 produced the birth certificate as exhibit, P.Exh.1. Defence Case 10.The Appellant when placed to his defence stated in a sworn statement that he was called by the chief and went to his home. He found him with three people. He was told that he had impregnated the complainant. He denied it. He was taken to the police station by KPR officers. He said that he never knew the complainant. He said that she framed him up with the case for no reason. 11.The case was disposed of by way of written submissions. Analysis and determination 12.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.” 13.The appeal is based on the grounds that the charge sheet was defective; that there was no DNA test conducted to prove that the Appellant impregnated the complainant; that the medical evidence adduced in the case did not support the defilement; that the KPR officers who arrested him did not testify in the case and that the trial court did not adequately consider his defence. 14.On the defective charge the Appellant submitted that the charge was too general in terms of time and that the want of specifics prejudiced the appellant. That the law requires the charge to be clear so that the accused understands the charge. That dates and time are very crucial to a charge but in this case, there were no specific dates as to when the incidents took place. That the charge failed this test. 15.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.” 16.The Court of Appeal in Benard Ombuna v Republic (2019) eKLR formulated the test of a defective charge as follows:In a nutshell, 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. 17.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.”. 18.The Appellant was charged with defiling the complainant on diverse dated in the months of January and February 2023. The offence that he was facing was disclosed in the charge sheet. The particulars of the offence gave reasonable information as to the nature of the offence that he was facing. It was clear from the evidence that the complainant was not keeping the dates when the sexual activities took place. The charge was not confusing or ambiguous. It could not prejudice the appellant in putting up an appropriate defence. I do not find any defect in the charge. 19.The Appellant argued that the Kenya Police Reservists who arrested him were not called to testify in the case. The issue of arrest of the Appellant was not in dispute. He admitted being arrested and taken to the police station by the said officers. He did not say whether they had any other relevant evidence other than the arrest. The officers even if called would not have added any value in the prosecution case or aided the case for the Appellant. 20.On the issue of medical and forensic evidence, the Appellant submitted that section 36 of the Sexual Offences Act allows a DNA test to be conducted in a sexual offence case for the purposes of ascertaining whether or not the accused committed the offence. It was submitted that no such evidence was adduced in the case. That the clinical officer who examined the complainant did not find her with a freshly broken hymen. Therefore, that there was no medical evidence to support the charge. 21.Indeed, no DNA test was conducted in the case and there was no medical evidence to link the appellant with the offence. However, the fact there was no such scientific evidence does not mean that that was the end of the case for the prosecution. It is trite that the offence of defilement can be proved by other ways other than by way of medical evidence. The Court of Appeal in the case of AML vs. Republic (2012) eKLR, authoritatively stated that:“The fact of rape or defilement is not proved by D.N.A. test but by way of evidence.” 22.In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the Court of Appeal held that:“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”. 23.In the case of Robert Mutungi Muumbi v Republic (2013) KECA 584 (KLR) the Court of Appeal held the following on the provisions of section 36 of the Sexual Offences Actthat:Section 36(1) of the Act empowers the Court to direct a person charged with an offence under the Act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Clearly that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical or DNA evidence is not the only evidence by which commission of a sexual offence may be proved. 24.That answers the issue of DNA and medical evidence. In the absence of forensic and medical evidence the prosecution could still prove the charge by way of oral evidence of the complainant or by circumstantial evidence. 25.Additionally, Section 124 of the Evidence Act allows the court in Sexual Offence cases 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 so finding. 26.The trial court in convicting the Appellant of the offence said that the evidence of the prosecution witnesses was solid and consistent. That there was no reason not to believe the evidence. 27.I have on my part re-evaluated the evidence adduced before the trial court in its entirety. The complainant testified that she engaged in sexual intercourse with the complainant on 5 occasions. She admitted that she is the one who made the first move and invited the Appellant to meet her in the bush and when they met she told him that she wanted to have sex with him. That after a few days she called him again and asked him to meet her in the bush. They met and once again she told him that she wanted to have sex with him. That they had sex on 5 occasions. There is no reason not to believe that kind evidence. The evidence was cogent and candid. It is rare to hear a girl admitting that she made the first move to have sex with a man. The evidence of the Appellant that he did not know the complainant was a mere denial. It was not suggested to the complainant during cross-examination that they were not known to each other. The Appellant was at the time being represented by an advocate. There is no reason why such a question was not put to the complainant if there was any truth in it. The Appellant’s defence must have been an afterthought. The trial court did not err in believing the evidence of the complainant. 28.A birth certificate was produced proving that the complainant was at the material time aged 16 years. The charge of defilement was proved against the Appellant beyond reasonable doubt. 29.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 10TH DAY OF JULY, 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Farhan