https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11907

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI CRIMINAL APPEAL NO. E009 OF 2025 KELVIN TSUMA BOZO…………………………………………………………………………..APPELLANT VERSUS REPUBLIC………………………………………………………………………………………...RESPONDENT **JUDGMENT** ***(Being an Appeal from the decision by Hon. R.M Amayi Principal Magistrate in Kaloleni S.O No. E047 of 2024 dated 20th January, 2025)*** **Background.** 1. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The appellant was found guilty of the main charge and convicted and subsequently sentenced to serve an imprisonment term of twenty (20) years. 2. The particulars of the main charge were that on 5th day of November, 2024 at (particulars withheld) in Kilifi County willfully and intentionally caused his genital organ namely penis to penetrate into genital organ namely vagina of R.A a child aged 15 years. 3. The appellant being aggrieved by the conviction and sentence of the trial magistrate lodged this appeal to the High Court. The appellant raised several grounds in his petition of appeal and amended ground of appeal contained in his undated submissions. From the submissions the appellant has argued only one ground, that the trial court erred in law and fact by failing to consider the defence under Section 8(5) of the Sexual Offences Act. I presume the appellant abandoned the other grounds raised in the petition of the appeal. **Prosecution Case.** 1. The prosecution case before the trial court was based on the evidence of five (5) witnesses. Briefly, the prosecution case was that the complainant who testified as PW2 was aged 15 years having been born on 5th May, 2010. She identified copy of her birth certificate. 2. She testified that on 5th May, 2024 she was sent to the shop. She passed by the appellant’s place who was her boyfriend. She found him in the house and they had sexual intercourse. Her mother PW3 was told by a neigbour that PW2 had been seen at the appellant’s house. 3. Her mother PW3 questioned her and she told her that the appellant had called her to his house and defiled her. PW3 informed PW4. The appellant and his mother were called but when the complainant was interrogated took it very lightly and started laughing. 4. In the meanwhile, PW4 called the police who came and arrested the appellant and took him to the station. The complainant was taken for medical examination. She was examined by PW1 who found that the hymen was missing and she had loose sphincter vaginal muscle. PW1 concluded that the complainant had been penetrated. Treatment notes, P3 Form and laboratory request and result were produced as exhibits. 5. PW5 investigated the case after the report was made. In the course of the investigations, he interrogated the complainant who narrated to him what had happened to her. He issued the complainant with P3 Form and escorted her to hospital for examination. He also obtained birth certificate of the complainant which he produced in court as exhibit. **Defence Case.** 1. The appellant when placed on his defence he opted to give unsworn statement. He said on 5th May, 2024 he was at home when a girl (presumably the complainant) came to their home. She told him that she wanted have sexual intercourse with him or else she will poison him. He gave in and had sexual intercourse with her. a neighbour saw her and informed her parents. He confirmed that indeed he had sexual intercourse with the complainant. 2. The appellant her aunt as a witness. She told the court that she had previously seen the complainant with the appellant. He informed her father to talk to her. **Finding of Trial Court.** 1. The trial court upon appreciating that the burden of proof lies with the prosecution and the standard of proof is that of beyond reasonable doubt as articulated in various decisions which the trial court cited among them the cases of ***Woolmington vs DPP (1935) A.C 462, Re Winship 397 US 358 (1970) 361-64*** proceeded and evaluated the evidence adduced by the prosecution and the appellant’s defence. 2. After outlining the essential ingredients of the offence defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act as set out in the said Sections and decided cases among them the case of ***Dominic Mwilaria vs Republic (2018) e KLR*** to wit the age of the victim, proof of penetration and identification of perpetrator, the trial court was satisfied that the offence of defilement was proved as required. 3. The trial court found the appellant’s defence a mere denial and an afterthought and rejected it. The trial court accordingly convicted the appellant and sentenced him to serve twenty (20) years imprisonment. **Appellant’s Submissions.** 1. The appellant in his undated submissions argued two grounds. The first ground is the defence under Section 8(5) of the Sexual Offences Act. Section 8(5) of the Sexual Offences Act provides: ***“8(5) It is a defence to a charge under this section if-*** 1. ***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*** 2. ***the accused person reasonably believed that the child was over the age of eighteen years.”*** 3. Section 8(6) of the Act provide: ***“(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.”*** 1. The appellant argued that it is the complainant who made advances to him making it difficult for him to tell whether she was minor. He submitted that the entire evidence of the complainant depicted her as someone who was well aware of her actions and she engaged in sexual intercourse willingly with him. He cited the sentiments of **Justice Odunga J** (as he then was) in the case of ***Eliud Waweru Wambui vs Republic (2019) e KLR*** where the court decried the unrealistic assumption that teenagers and maturing adults in the sense employed by other jurisdiction like England do not engage in and often seek sexual activity. 2. It was the view of the appellant that he did not have criminal intention to commit the offence and thus he should benefit from the defence under Section 8(5) of the Sexual Offences Act. He relied on the case of ***J.N.N vs Republic Criminal Appeal No. 71 of 2013*** where the court emphasized that it is the criminal intention or negligent which is intended to be punished and it is the duty of the prosecution to establish the accused had requisite mental capacity to commit the offence and equated such relationship as in this case as Romeo *and Juliet.* 3. Finally, the appellant argued that the penal provisions of the Sexual Offences Act deprived the court the discretion in imposing sentence. He urged the court to find that the trial court erred in construing Section 8(3) of the Act to be a minimum mandatory sentence. He urged the court to depart from such construction of the said provision as a minimum mandatory sentence. He relied on several cases among them the cases of ***Swabir Bukhet Labshed vs Republic C.A Criminal Appeal No. 52 of 2018*** and the Ugandan case of ***Opoya vs Uganda (1967) E.A 752.*** 4. The appellant further relied on the Sentencing Policy Guidelines and urged the court to adjust the sentence. **Respondent’s Submissions.** 1. The respondent submitted that the prosecution discharged its duty and the charges were proved as required. It was argued that the evidence adduced by the prosecution established all the essential ingredients of the offence of defilement. 2. It was argued that the evidence by the complainant and the medical evidence established that there was penetration. The age of the complainant was proved and that the appellant was positively identified as the perpetrator. 3. The respondent further argued that the sentence imposed by the trial court was lawful as provided by the law. **Analysis and Determination.** 1. This being a first appeal to the High Court, and as expected I have examined the record, re-evaluated the evidence adduced before the trial court and drawn my own independent conclusions. I have done so without overlooking the fact that I did not have the advantage of hearing or seeing the witnesses testify in court. ***(See Okeno vs Republic (1972) E.A 32*** and ***Njoroge vs Republic (1987) KLR 19)*** 2. Further I have remined myself of the cardinal principle that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt as restated in numerous authorities like in the case of ***Stephen Nguli Mulili vs Republic (2014) e KLR*** where the court cited the case of ***DPP vs Woolmington (1935) UKHL 1*** and reiterated that it is the duty of the prosecution to prove its case and that remains the Kenyan position. 3. Guided by the foregoing, I have re-evaluated the evidence adduced by the prosecution and the accused defence. There is no doubt that all the essential ingredients of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act were proved to the required standard. 4. The evidence was clear that she had sexual intercourse with the appellant. The appellant in his defence did not deny that fact. He said it is the complainant who enticed him to have sex with her. The medical evidence adduced showed that the complainant had been penetrated. As such the element of penetration was proved as required. 5. The age of the complainant was equally proved by production of birth certificate showing that at the time of the commission of the offence the complainant was aged 15 years. 6. There is no dispute that the appellant was known to the complainant. In fact, the complainant said that the appellant was her boyfriend. The appellant also confirmed in his defence and submissions that the complainant on occasions used to go tom his house and have sexual intercourse. They were no strangers to each other. Moreso the appellant was a neighbour and was well known to PW3 and PW4 the parents of the complainant. There can be no doubt about the identification of the appellant as the perpetrator. 7. It was an open and shut case and the trial court cannot be faulted for finding that all the ingredients of the offence were proved. 8. The sole issue for determination is whether the appellant can benefit from the defence under Section 8(5) of the Sexual Offences Act. It is notable that the appellant did not raise that defence during the trial. He has raised it in his submissions. It is the duty of this court to explore the evidence adduced and find whether the prevailing circumstances in this case the appellant was deceived by the complainant to believing that she was over eighteen years of age. 9. For an accused person to rely on the defence under Section 8(5) of the Sexual Offences Act, he must lay factual foundation for this defence during the trial rather than introducing it for the first time on appeal. In the instant case, the appellant never raised or laid basis for the court to consider whether the appellant can benefit from that defence. 10. I have looked at the evidence adduced before the trial court and there is nothing suggestive that the appellant raised the defence under Section 8(5) of the Act during the trial. In fact, when he cross-examined the complainant she told him that she was in grade 8 proceeding to grade 9. She also told her that she also said she was aged 14 years. 11. Further to the foregoing, it is trite law that a child has no capacity to consent to sexual intercourse. The mere fact that the complainant went to the appellant’s house and had sex with the appellant, does negate the fact that the complainant had no capacity to consent to sex going by her age. This position was aptly put in the case of ***Nehemiah Kiplagat Ngeno vs Republic (2018) e KLR*** where the court stated: ***“The fact that a child goes to a man’s house and has consensual sex with him does not take away criminal liability from the adult. The law is that a child under the age of 18 years has no capacity to consent to sex. Secondly, an adult is deemed to know that it is unlawful to engage in sexual conduct with a child.”*** 1. The argument by the appellant that it is the complainant who enticed him to have sex with her by coming to his house cannot suggest that the complainant deceived him to believe that she was over eighteen years of age when there was glaring evidence that she was a minor. In any case there is no evidence suggestive that the appellant took any steps to ascertain the age of the complainant. The mere fact that the complainant would go to the appellant and have sex cannot avail the defence under Section 8(5) of the Act to the appellant. 2. From the analysis above I am not persuaded that the appellant can benefit from the defence under Section 8(5) of the Act. I also find that the said defence was not raised during the trial and the appellant cannot be allowed to introduce it first at the appellate stage. 3. The appellant complained about the sentence imposed by the trial court. The penal provision of the Sexual Offences Act under which the appellant was sentenced provides for imprisonment for a term not less than twenty years. This is the minimum sentence for the offence under Section 8(3) of the Sexual Offences Act. The sentence meted was lawful. Again, is settled that the appellate court should exercise extreme caution in interfering with trial court exercise of discretion. 4. In the instant case the sentenced imposed on the appellant was lawful and I have no reason to disturb the same. 5. Consequently, I find the appeal unmerited and the same is dismissed and the finding of the trial court is hereby upheld. **Dated, signed and delivered virtually this 23rd day of July, 2026.** **Francis N. Kyambia** **Judge**