https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8884

Charo v Republic (Criminal Appeal E082 of 2024) [2026] KEHC 8884 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8884 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E082 of 2024 JN Njagi, J June 19, 2026 Between Benson Kazungu Charo Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon. Onalo J.K.Olga. SRM in Malindi Chief Magistrate’s Court Sexual Offence Case No.E034 of 2022 delivered on 8/8/2024) 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. The particulars of the offence were that on diverse dates between 10th December 2021 and 10th April 2022 at (name withheld) village in Malindi sub county within Kilifi County, he intentionally caused his penis to penetrate the vagina of M.S.C. (herein referred to as the complainant), a girl aged 17 years. 2.The Appellant was sentenced to serve15 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:1.That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case beyond reasonable doubt as required under sections109 and 110 of the Evidence Act.2.That the learned trial magistrate erred in law and facts by failing to consider sharp contradictions in the prosecution evidence in contravention of Section 163(1) of the Evidence Act.3.That the learned trial magistrate erred in law and facts by failing to consider that the Appellant was not present at the time of judgment.4.That the learned trial magistrate erred in law and facts by failing to consider the negligence and ignorance of the police service unit. Case for prosecution 3.The case for the prosecution was that the complainant was at the material time a secondary school student. She hailed from the same village with the Appellant. 4.It was the evidence of the complainant that the Appellant seduced her in the year 2022. That in the month of March 2022 they engaged in sexual intercourse at his rented room at a plot in her home area. She later developed stomach problems and she informed her mother, PW2. She was taken to hospital where she was examined and found to be pregnant. She informed her parents that it is the Appellant who was responsible for her pregnancy. 5.A doctor at Malindi sub county hospital PW4 testified that the complainant was taken to their medical facility with complains of stomach pains and vaginal bleeding. A pregnancy test was done that came out positive. An ultra sound was done but there was no sign of a foetus, suggesting loss of pregnancy hence the bleeding. The doctor completed her P3 form and formed the conclusion that there was vaginal penetration on a 16 year-old with pregnancy or loss of it. During the hearing of the case in court the doctor produced the treatment notes, the ultra sound report, the radiology report, the lab request form, the P3 form and a copy of the birth certificate as exhibits, P.Exh. 1 - 6 respectively. 6.The case was investigated by a police officer who left Malindi police station on transfer to another police station. A colleague police officer PW4 testified on his behalf and produced his witness statement as an exhibit in the case, P.Exh.7. Defence Case 7.When placed to his defence the appellant stated in a sworn statement that he bought 6 goats from the mother to the complainant and left them with her for him to pick them later. That when he went to pick them the woman told him that two of the goats he had bought were not hers and that their owner had collected them. She promised to refund his Sh.10,000/= later. That he went to Bamba. That on 23/1/2022 he went to the woman to collect his money. She said she did not have the money and promised to pay later. That when schools closed in April the complainant was seen with a red phone that was similar in colour to his phone. The mother to the complainant went to him and accused him of hiding her daughter. Later the complainant was taken to hospital and found to be pregnant. Her mother accused him of being responsible for her pregnancy because she had a case with him concerning her phone. He was called to hospital and was questioned about the pregnancy. He denied being responsible. They were unable to pay the hospital charges and the village elder asked him to pay. He paid for them and he was to add it to the Ksh.10,000/= that the mother to the complainant owed him. On 17/4/2022 he was arrested by the police and taken to the police station. 8.The appeal was disposed of by way of written submissions. Submissions 9.The Appellant submitted that the case was fabricated by the mother to the complainant as she owed him some money. That the complainant was coerced by her mother to lie against him. 10.The respondent submitted that the ingredients of the offence of defilement were proved against the Appellant beyond reasonable doubt Analysis and determination 11.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.” 12.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. 13.The trial magistrate in convicting the Appellant of the offence found that the birth certificate produced in court indicated that the complainant was born on 20/5/2004. That the same proved the age of the complainant at the material time at 17 years. That the evidence of the complainant that she had sex with the Appellant and that she was pregnant was corroborated by the evidence of the doctor. The court said that it found the complainant to be a truthful witness. That the complainant identified him as the perpetrator of the offence. That the Appellant had no evidence to support his defence that the mother to the complainant owed him money for 2 goats. Nor did he adduce evidence to support his defence of alibi. 14.Indeed, there is no dispute on the age of the complainant. Her age was proved by the birth certificate to have been 17 years at the material time. 15.On the element of penetration, Section 2 of the Sexual Offences Act defines the same as:“..the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 16.The complainant testified that she had sexual intercourse with the Appellant once in his house after which she later developed stomach pains and when she went to hospital, she was found to be pregnant. The trial court believed that the complainant was telling the truth and found support in her evidence in the evidence of the doctor PW3. 17.The evidence of the doctor was that the complainant was pregnant and that she had possibly lost the pregnancy. The doctor never adduced evidence that the Appellant was the one responsible for the complainant`s pregnancy. There was thus no medical evidence to link the Appellant with defilement or pregnancy on the complainant. The trial court was in error in making a finding that the evidence of the doctor supported defilement on the complainant. 18.There being no independent evidence to support defilement on the complainant, the case for the prosecution rested on the credibility of the complainant that the appellant defiled her. The question was whether the complainant was telling the truth that the Appellant defiled her. 19.It is in the first place important to note that the Appellant was charged with defiling the complainant on diverse dates between 10th December 2021 and 10th April 2022. The complainant in her evidence in court stated that she only engaged in sex with the complainant once in the month of March 2022. Where from then did the investigating officer who charged the Appellant with the offence obtain the evidence that the Appellant defiled the complainant on diverse dates between December 2021 and April 2022 as stated in the charge sheet? 20.According to the doctor who completed the complainant`s P3 form PW3, the history of the case given to him was that the complainant had been “involved in a sexual relationship with a man well known to her as from December 2021 got pregnant in March 2022 and had a miscarriage on 13/4/2022.” Why would the complainant have told the doctor that she had engaged in sexual intercourse with the Appellant since December 2021 only for her to come to court and allege that it was only one episode of sex in the month of March 2022? In my view the complainant does not seem to have been a truthful witness on her relationship with the Appellant. The Court of appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283, held the following on credibility of witnesses:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 21.The complainant herein did not explain the inconsistency in her evidence on the number of times, if at all there was such, she engaged in sexual intercourse with the Appellant. The inconsistency painted her as a doubtful and unreliable witness whose evidence could not be relied upon to convict the Appellant. The trial court did not consider this aspect of the case before coming to the conclusion that the complainant was a truthful witness. In view of the doubtful credibility of the complainant, the Appellant was entitled to the benefit of doubt. 22.The upshot is that this court finds that there was no sufficient evidence to support the conviction on the Appellant. Consequently, the conviction is quashed and the sentence set aside. I order the Appellant be set at liberty forthwith unless lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 19TH DAY OF JUNE 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant -