https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9108

Baya v Republic (Criminal Appeal E121 of 2023) [2026] KEHC 9108 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9108 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E121 of 2023 JK Biomdo, J June 18, 2026 Between Stephen Gunga Baya Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. E.K USUI (CM) in Malindi CMCC (SO) Case No. E038 of 2020) Judgment 1.The appellant herein, Stephen Gunga Baya, was charged with the the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act,No. 3 of 2006. 2.The particulars of the offence are that on diverse dates between June and July 2020 at [Particulars Withheld]in Magarini Sub-County within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of HZD a Child aged 15years. He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act, No.3 of 2006 with particulars stating that on diverse dates between June and July 2020 at [Particulars Withheld]in Magarini Sub-County within Kilifi County he intentionally and unlawfully caused his penis to come into contact with the vagina of HZD a Child aged 15years. 3.The prosecution’s case was that PW1 knew the appellant since July 2020 while she lived in Mlunguni with her mother. She had sex with the appellant who was her boyfriend on three (3) occasions at his house. In September 2020, she discovered that she was pregnant and informed her mother. She identified the appellant as responsible for her pregnancy. This was collaborated by PW2, the complainant’s father, who testified that in May 2020, during COVID 19 while schools were closed, PW1 who was in Class 7 by then went to live with her mother from May to July 2020. After she returned, she fell sick and was taken to Sosioni Dispensary where upon examination, she was found to be pregnant. She identified the appellant as responsible. 4.PW2 reported that matter to the Police and was issued with a P3 form which was duly filled on 1 September 2020. Medical examination conducted on 2 September 2020 established that PW1 was 10 weeks 2 days pregnant. Based on the evidence, the accused was charged with the offence of defilement on 14 December 2020 where he pleaded not guilty. The case was heard where the appellant was found guilty and 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 sentenced to serve ten (10) years imprisonment. 5.Aggrieved, the appellant filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:a.The trial court erred in both law and fact by failing to appreciate that the case was not proven beyond reasonable doubt.b.The trial court erred in both law and fact by failing to consider contradictions on the prosecution's case.c.The trial court erred in both law and fact by connecting the appellant to unreliable exhibits and a poorly investigated matter.d.The trial court erred in both law and fact by failing to consider mitigating circumstances in his favour before passing the sentence. 6.At the hearing of the appeal, both parties filed written submissions which they relied on. The appellant contended that the prosecution did not discharge its duty of proving its case beyond reasonable doubt. While admitting that there was evidence of penetration against the PW1, the victim, he submitted that she was 18 years old at the time of testifying. He further argued that the complainant behaved maturely and there is a possibility she may have lied to the appellant about her age. He went on to state that he believed the complainant to be an adult who voluntarily entered into a consensual relationship with him. 7.The appellant further submitted that there were inconsistencies in the charge sheet which identified the complainant as a minor of 15 years, the birth certificate which indicated that she was 16 years and her testimony where she claimed to be 18 years. He further contended that there were inconsistencies in the testimonies of PW2 and PW3 as to how the pregnancy was discovered and the medical records adduced to support the charge. 8.The appellant submitted that all documents relied by the prosecution as exhibits were unreliable for inconsistencies and urged the court to disregard them. He challenged the investigations which he termed as shoddy and inadequate to warrant a conviction and urged the court to acquit. 9.On the sentence, the appellant submitted that the trial court failed to take into account his mitigation by ignoring the fact that he was almost the same age as the victim, PW1 with whom they had sired two (2) children who required care and attention, that he was living with PW1 as husband and wife and that the probation report recommended a non-custodial sentence. He urged the court to reconsider the sentence in view of the above. 10.The Respondent opposed the appeal and reiterated that the evidence produced in court was relevant, reliable and properly adduced in support of the prosecution’s case. That there was sufficient evidence to support the charge against the appellant which was duly corroborated and unchallenged. 11.It was contended that the prosecution was able to prove all ingredients of the offence to the required standard by demonstrating by way of evidence; that the appellant had penetrated the vagina of the victim, that the victim was 15 years old at the time of the incident and that the appellant was positively identified by the victim. It was thus urged that the appellant was properly convicted and this court was invited to dismiss the appeal and uphold the conviction. 12.On the sentence, the Respondent submitted that the appellant spent eleven (11) months in custody pending hearing but was unsure if this period was taken into account by the trial court in passing the sentence. The court was urged to consider the period in the event it was omitted in compliance with section 333 (2) of the Criminal Procedure Code and paragraph 2.2.18 of the Sentencing Guidelines 2023. Analysis and determination 13.This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32. 14.The Court of Appeal, in Kiilu & Another v Republic [2005]1 KLR 174, stated 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; it must make its own findings and draw its own 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.” 15.The issues for determination in this appeal are as follows: -a.Whether penetration was proved.b.Whether the Appellant was positively identified.c.Whether the age of the Complainant was proved.d.Whether the trial court failed to consider the circumstances of the case, the appellant’s defence and mitigation before passing sentence. 16.The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, which provides:“8 (1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.…………………..(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 17.The specific elements of the offence defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: proof of penetration; age of the complainant and positive identification of the assailant. In Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 the court stated;“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” Proof of Penetration 18.Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. 19.Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Criminal Appeal No. 35 of 1995. The above position has been restated in many other decisions. In Kassim Ali vs Republic [2006] eKLR, the Court of Appeal observed as follows:“So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR). 20.PW1 testified that between May and July 2020, she had sex with the appellant three (3) times at his (the appellant’s) house. She conceived thereafter. This was corroborated by medical evidence contained in the medical examination report and medical test results that established that PW1’s hymen was broken and she was 10 weeks and 2 days pregnant. The evidence of PW2, PW3 and PW4 affirmed the complainant’s testimony and investigation findings. PW1 identified the appellant as responsible for the pregnancy a fact that was not challenged or denied by the appellant during trial. 21.An examination of the evidence shows that PW1 conceived between June and July 2020 which is consistence with the testimony of sexual intercourse between the two. The Court has carefully examined the exhibits and documents adduced and did not find any inconsistencies or contradictions therein. The court finds that penetration was proved. Proof of identification 22.On the issue of identification of the perpetrator, there is evidence that the appellant is well known to the Complainant, PW1. PW1 testified that on the material period, she had sex with the appellant on three (3) different occasions, a fact which was not denied or challenged by the appellant. There was no case of mistaken identity and the court finds that the appellant was positively identified as the one who defiled PW1. Proof of age of the victim 23.The age of the complainant in the Sexual Offences Act is very important as it determines the severity of the punishment to be meted on the appellant. In Alfayo Gombe Okello v Republic Cr.Appeal No. 203 Of 2009, the Court of Appeal stated as follows;“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim as necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8 (1)….. ” 24.The age of a victim may be proved in various ways. The Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLRthus stated:“... 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.” 25.PW1 produced birth certificate which showed that she was born on 28 November 2004 meaning that that in June 2020 when the incident is first reported to have occurred, she was 15 years and 7 months old. The appellant did not challenge the authenticity of the birth certificate and the court finds no reason to doubt it. 26.In his appeal the appellant submitted that the complainant behaved maturely and there is a possibility she may have lied to the appellant about her age. Section 8 (5) & (6) of the Sexual Offences Act provides as follows with regard to this matter;(5)It is a defence to a charge under this section if –(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. 27.Specific elements of proof required by law in that regard are evidence that the complainant deceived the appellant that she was over 18 years of age at the time of commission of the offence, that the appellant believed her to ne over 18 years and that the appellant took reasonable steps to ascertain the age of the complainant. 28.The court has examined the trial court record and found that PW1 informed the appellant that she was still in school and that he (the appellant) asked her to go back to school after which they would get married. There is no evidence that she deceived him in any manner that she was over 18 years. Having established that she was in school, it was upon him to inquire on her age but took no steps to do so. The court finds that the specific elements set out in Section 8 (5) and (6) of the said Act were not established to entitle the appellant to this defence. 29.The court finds that all ingredients of the offence as charged were proved beyond reasonable doubt and upholds the conviction. Sentence 30.On the issue of sentencing, the appellant submitted that the court ought to have taken into account the fact that both he and the complainant were young at the time of the incident, that he was living with the complainant as husband and wife with the full knowledge of their families, that he ought to be given an opportunity to raise his children who were of tender age and a non-custodial sentence would be most suitable as per the probation report. The Respondent conceded that it was not clear whether the trial court took into account the period of eleven (11) months that the Appellant was in custody during trial. 31.Section 333 (2) of the Criminal Procedure Code (CPC) states;“Subject to the provisions of section 38 of the Penal Code (Cap. 63) everysentence shall be deemed to commence from, and to include the whole of the dayof, the date on which it was pronounced, except where otherwise provided in thisCode.Provided that where the person sentenced under subsection (1) has, prior tosuch sentence, been held in custody, the sentence shall take account of the period spent in custody”. 32.By dint of Section 333(2) of the CPC, the trial court was required to take into account the period spent by the appellant in custody prior to sentencing which is eleven (11) months. From the record, the trial court makes no pronouncement on the issue and this court finds that in the absence of a positive pronouncement, the same was not taken into account. This was clearly an error. 33.The appellant was sentenced to 10 years imprisonment for the offence of defilement. Having established that the victim was 15 years, the law sets the minimum mandatory period of imprisonment to be 20 years. The Supreme Court in Petition E018 of 2023, Republic vs Joshua Gichuki Mwangi held that the Minimum Sentences set out in Section 8 of the Sexual Offences Act are lawful. Consequently, the trial court erred by awarding a sentence that is lower than the mandatory minimum of 20 years. 34.Section 354 (3) of the Criminal Procedure Code empowers the High Court, on appeal against a conviction to, with or without altering the finding, reduce or increase the sentence. This is a proper case that would call upon the court to exercise the power under the law to rectify the trial court’s error. 35.However, there was no notice of enhancement of sentence issued to the appellant. Neither was a cross appeal filed by the Respondent in this case. The court of appeal in Samwel Mbugua Kihwanga v Republic [2016] KECA 281 (KLR) observed as follows:“…the obligation on an appellate court to fore- warn or caution an appellant before enhancing a sentence imposed against him by a trial court is not anchored on any law but in practice that has now gained such notoriety that it is proper that an appellant be warned of the consequences of proceeding with his appeal in circumstances where so proceeding may likely result in the sentence being enhanced to his disadvantage. It is simply to enable him weigh the options available and then make a decision that suits his best interests, especially in circumstances where, like in the instant appeal, an appellant is disadvantaged for not being schooled both in the law and legal procedures he may be confronted with during the course of the trial of his appeal.” 36.The appellant was not fore-warned about the possibility of enhancement of the sentence to enable his make an informed decision as well as afford him an opportunity to be heard. This deprived him an opportunity to decide whether or not he wished to proceed with the appeal or abandon it. Enhancing the sentence without notice as aforesaid would violate the appellant’s right to fair trial under Article 50 of the Constitution, thereby rendering the whole proceedings a nullity. Conclusion 37.In light of the above, the court makes the following orders: -a.The appeal against conviction has no merit and is accordingly dismissed.b.The sentence of ten (10) imprisonment by the trial court is upheld.c.Period of eleven (11) months spent in custody by the appellant during trial shall be deducted from the appellant’s sentence.d.The sentence shall run from the date of conviction. 38.It is so ordered. DATED, DELIVERED VIRTUALLY AND SIGNED AT NAIROBI ON THIS 18TH DAY OF JUNE 2026JOSEPH KIPKOECH BIOMDOJUDGE