https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6488

BMC v Republic (Criminal Appeal E070 of 2025) [2026] KEHC 6488 (KLR) (6 May 2026) (Judgment) Neutral citation: [2026] KEHC 6488 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E070 of 2025 JN Njagi, J May 6, 2026 Between BMC Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon. I. Thamara, RM, in Malindi Chief Magistrate`s Court Sexual Offence Case No. E075 of 2021 delivered on 5/6/2024) 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 and sentenced to serve 8 years imprisonment. The particulars of the offence were that on diverse dates between June 2021 and 7th August, 2021 at (name withheld) village Chakama Location in Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of P.P.J.K. (herein referred to as the complainant), a child aged 16 years. 2.The Appellant was aggrieved by the conviction and the sentence and lodged an appeal on the following grounds of appeal:1.That the learned trial magistrate erred both in law and fact in convicting the Appellant on uncorroborated inconsistent and improbable testimony of the complainant.2.That the learned trial magistrate erred both in law and in fact in relying on the hearsay evidence of PW2.3.That the learned trial magistrate erred both in law and fact inn failing to draw an adverse inference against the prosecution for failing to call crucial witnesses in the case.4.That the learned trial magistrate erred both in law and fact in failing to find that the medical evidence adduced in the case did not support the charge of defilement and was insufficient to link the Appellant to the alleged offence.5.That the learned trial magistrate erred both in law and fact in failing to find that the investigations in the case were grossly inadequate, incomplete and contradictory, thereby rendering the conviction unsafe.6.That the learned trial magistrate erred in law and facts in failing to7.properly evaluate the defence evidence.8.That the learned trial magistrate erred in convicting the Appellant against the weight of evidence when the case was not proved beyond reasonable doubt.9.That the learned trial magistrate erred in law and facts in imposing a sentence that was harsh and excessive. 3.The prosecution called 4 witnesses in the case while the Appellant defended himself and called 2 witnesses. Prosecution’s case. 4.The case for the prosecution was that the complainant was at the material time aged 16 years and was a class 6 pupil. She was staying with her mother PW2. The mother to the complainant`s PW2 and the mother to the Appellant are sisters. 5.It was the evidence of the complainant that in the month of May 2021 she went to stay with her grandmother as the home of her grandmother was close to the school that she was attending. The Appellant was living in the same homestead of her grandmother. That in the month of June 2021 the appellant told her that he loved her and that he would marry her. After that they started to engage in sex at night in the bush close to their home. She could not recall the dates but they did so more than ten times between the months of June and July 2021. She did not inform anyone about it. 6.It was further evidence of the complainant that she one day left school and went for lunch at the shops with her sister and a bother. That she left them and went to relief herself in the forest. That after relieving herself she went to the shops and then to school. Later on, her grandmother told her that some school boys called J and S had seen the Appellant leaving the same forest. Her grandmother threatened to report her to her mother. It was her evidence that she on that day had not seen the Appellant in forest near her school. Neither had she seen J and S. She was later removed from that school and was taken to Kibokoni to live with her aunt. She was taken to Malindi General Hospital. 7.The mother to the complainant PW2 testified that she was staying with the complainant who in the month of May 2021 left to live at the home of the appellant because she wanted to be near her school. That later on she was approached by students called S and J who informed her that they had found PW1 and the appellant having sex at a forest close to her school. She asked her daughter about it and she admitted it. She asked for forgiveness. She reported the matter at her school and later at Lango Baya police station. 8.It was the evidence of the complainant`s mother that the complainant was born on 10th June 2005. She identified her birth certificate, P.Exh.1. 9.The complainant was examined by a doctor at Malindi sub county Hospital, PW3. It was the evidence of the witness that the complainant was taken to the facility in 10/8/2021. That upon examination, he found her with whitish vaginal discharge. Other tests were done that turned out negative. He filled the complainant`s P3 form and concluded that there was vaginal penetration. 10.The case was investigating by PC Thomas Simiyu PW4 of Lango Baya police station. It was his evidence that the matter was reported at the station on 11/8/2021 by the complainant who was accompanied by her mother. They had by then been issued with a P3 form. The complainant reported that she had been defiled by the appellant. He interrogated her and she informed him that she had sexual relations with the appellant from June 2021 to August, 2021. The complainant`s mother PW2 said that she was informed of the affair by school children. He, PW4, later arrested the Appellant. He denied knowing the complainant. Defence Case 11.The Appellant in his defence gave sworn statement in which he stated that he is a carpenter and a mason. That prior to his arrest, he had never been summoned by any authority regarding this matter. That he only knew the complainant but he had no sexual relationship with her. That he was arrested by police officers in court while attending another case. He denied the allegations by PW2 that he was found in the bush by S and J while having sex with the complainant. It was his evidence that he had never disagreed with the complainant. That her mother PW2 is a daughter to his aunt. That there was a grudge between him and the complainant’s mother PW2 as he had caught her having an affair with a man who was not her husband. He denied the charges levelled against him. 12.SK DW2 told the trial court he hails from the same area with the Appellant. That he was at the material time a secondary school student. That the complainant`s mother PW2 approached him to be a witness in this case on allegation that he saw the complainant having sex with the Appellant in the bush. He refused as he had not witnessed such an incident. He said that he was at school at the alleged time. That he was not summoned at the police station. That PW2 was forcing him to come and testify as she wanted the appellant imprisoned. 13.JG DW3 testified that he was a student at [Name Withheld]. That the Appellant is his friend. That the mother to the complainant asked him to be a witness in this case that he saw the Appellant having sex with the complainant in the bush. He refused as he did not witness such an incident. He denied that he informed the complainant`s mother that he witnessed such an incident. He said he was in school at the alleged time. 14.The appeal was canvassed by way of written submissions. Appellant`s submissions 15.The appellant submitted that the prosecution failed to discharge the burden of proof beyond reasonable doubt. He submitted that the complainant did not present herself as a credible witness and that her evidence was rife with inconsistencies, contradictions and omissions thereby rendering it unsafe for the purpose of sustaining a conviction. 16.He submitted that the narration of the incidents of defilement were not believable in that the complainant said that he would open the door to the house where the complainant was sleeping at night with her grandmother and aunties, wake her up after which they would go to the bush for sessions of sex. It was his contention that such a thing could not have happened without the women who were in the house hearing him do so. That the evidence was not believable and the trial court did not give reasons why it believed the evidence of the complainant. 17.It was submitted that while section 124 of the Evidence Act allows a court to convict on the uncorroborated evidence of a complainant in sexual offences, the evidence must nonetheless be truthful, credible and reliable. That the section does nor relief the court of its duty to carefully test the evidence and to give cogent reasons why it believes the evidence. 18.The Appellant faulted the trial court in relying on the hearsay evidence of the complainant`s mother PW2 on what she was told by S and J who were not called by the prosecution to testify in the case but appeared as defence witnesses. That failure to call the evidence of the two witnesses invited the inference that if called their evidence would have been adverse to the prosecution case, see Bukenya & others v Uganda (1972) EA 549. 19.The Appellant submitted that the medical evidence adduced before the trial court did not support the charge as there were no injuries to the genitalia proving recent sexual intercourse. That the trial court erred in treating the medical evidence as having been conclusive in proving the charge. 20.It was submitted that the investigating officer PW4 did not visit the scene. That the investigations conducted in the case were not thorough. That the trial court did not give reasonable explanation why it rejected the evidence of DW2 and DW3. The Appellant faulted the trial court in ignoring the defence evidence. Respondent’s submissions 21.Counsel for the Respondent submitted that the prosecution had proved their case beyond reasonable doubt. She submitted that the age of the complainant was proved by the birth certificate that showed that the complainant was born on 10th June, 2005 thereby making her 16 years at the time of the offence. 22.On the ingredient of penetration, counsel relied on the case of Mohamed v R (2008) KLR where the court held as follows;“In trials of this nature offences of defilement are usually committed in total privacy and secrecy. Even so, the prosecution duty is to prove directly or circumstantially that the victim has been defiled.” 23.She submitted that the complainant’s testimony was corroborated by the doctor who confirmed that there was penetration. 24.On identification of the perpetrator, counsel submitted that the appellant was a cousin to the complainant’s mother and lived in the same homestead with the complainant which was sufficient evidence that the complainant had known the appellant for some time even before the offence occurred. Counsel urged the court to dismiss the appeal. Analysis and determination 25.This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated that:“…the duty of the first appellate court is to analyse and reevaluate evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the circumstances of the case come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision”. 26.The offence of defilement is rooted on three main ingredients being the age of the victim, penetration and the proper identification of the perpetrator - see George Opondo Olunga vs. Republic [2016] eKLR. 27.On the element of age, it is trite that the age of a victim of defilement may be proved in various ways as was stated by the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR that:“... 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.” 28.In the instant case, the complainant’s mother (PW2) said that her daughter PW1 was born on 10th June, 2005. PW4 the Investigating Officer produced her Birth Certificate as P.Exh. 1 which showed that the said date of birth and thereby making the age of the complainant 16 years at the time of the alleged incidents. The age of the complainant was therefore proved. 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. The same can be proved by oral evidence of the victim or by way of circumstantial evidence, see Kassim Ali v Republic, Criminal Appeal No. 84 of 2005. 30.The trial court in its judgment held that the medical evidence pointed to there being vaginal penetration and therefore that penetration was proved. 31.The doctor PW3 testified that he only found the complainant with broken hymen and vaginal discharge. There was no evidence that the hymen was recently broken. The medical evidence did not connect the Appellant with the offence of defilement on the complainant. 32.Section 124 of the Evidence Act allows 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 such a finding. 33.The trial magistrate in convicting the Appellant of the offence believed that the complainant was telling the truth. That it was clear that the Appellant knew how to open the door where the complainant was sleeping and he would take her away to the bush to have sexual intercourse with her. That the complainant said in her evidence that she did not see the Appellant in the forest on the day she was alleged to have had sex with him in the forest near her school. The court further held that the defence of the Appellant that the mother to the complainant had a grudge against him after he found her having an extra-marital affair was an afterthought as he did not put any question to her over the same during cross-examination. 34.I have on my part re-examined the evidence of the complainant and weighed it against the Appellant`s defence. I am in agreement with the trial court that the complainant was telling the truth. In the first place, the Appellant and the complainant were living in the same homestead. There was no allegation that there was bad blood between them. There was thereby no reason for the complainant to lie against the Appellant. 35.The complainant testified that she used to engage in sexual intercourse with the Appellant in the bush near the home of the Appellant. That the same used to take place at night but that there are two times that they did so during the day. That on the occasions the same used to take place at night, they used to do so after everybody at the home had gone to sleep. That the Appellant would open the door to the house where she was sleeping with her aunties and wake her up by touching her. They would then head to the bush for a session of sex. The complainant demonstrated to the trial court how one could open the door from outside. The Appellant did not challenge that evidence. I do not find any substance in the argument by the Appellant that the evidence was not believable because none of the women who were sleeping with the complainant in the house heard him opening the door. There was no evidence that any of the women heard him opening the door and the prosecution failed to call her to testify in the case. In my consideration the evidence of the complainant was credible and believable. 36.The Appellant argued that the trial court relied on the heresy evidence of the complainant`s mother PW2 to convict him of the offence. I have noted from the judgment of the trial court and note that the court in fact held that the evidence of PW2 on what she was told by DW2 and DW3 was hearsay evidence. The court thereby did not rely on the said evidence to convict the Appellant. Besides that, the complainant stated that she only went to the forest near her school to relief herself and she did not meet the Appellant in that forest. If therefore S and J told her mother that they saw the complainant having sexual intercourse with the Appellant in the said forest, they were lying to PW2. No wonder then that they testified for the defence. 37.The Appellant alleged that the mother to the complainant had a grudge against him. He however never asked her about the grudge when she testified in court. I am in agreement with the trial court that the issue was an afterthought. 38.The Appellant alleged that the case was full of contradictions and that material witnesses were not called in the case. I have gone through the evidence and I do not see any material contradictions in the case. The witnesses who were called by the defence were able to prove the case beyond reasonable doubt. 39.The Appellant was a relative to the complainant. The issue of his identification did not arise in the case as the complainant knew the person who was defiling her. The same took place on many occasions and there was no possibility of mistaken identity. Two of the incidents took place during the day. The evidence adduced against the Appellant was overwhelming. The trial court rightly dismissed his defence. 40.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 6TH DAY OF MAY 2026J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch HB for Miss Ngina Mutua for RespondentAppellant - present virtually at GK Prison MalindiCourt Assistant - Nasra