https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7109

Gereza v Republic (Criminal Appeal E049 of 2024) [2026] KEHC 7109 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 7109 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E049 of 2024 JN Njagi, J May 20, 2026 Between Dena Mkalla Gereza Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon. Ngii, Principal Magistrate, in Mariakani Senior Principal Magistrate`s Court Sexual Offence Case No. E056 of 2021 delivered on 18/2/2022) Judgment 1.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 10 years imprisonment. The particulars of the offence were that on diverse dates between the month of May and 31st July 2021 at (name withheld) in Kinango sub county within Kwale County he intentionally and unlawfully caused his penis to penetrate the vagina of R.T. (herein referred to as the complainant/victim), a child aged 15 years. 2.The Appellant was aggrieved by the conviction and the sentence and lodged the instant appeal on the following grounds:1.That the learned trial magistrate erred in law and fact by allowing the victim PW2, to give sworn evidence without conducting a voire dire examination to determine whether she possessed sufficient intelligence to understand the importance of telling the truth.2.That the learned trial magistrate erred in law and fact by convicting the Appellant yet the age of the complainant was not proved as required by law.3.That the learned trial magistrate erred in law and fact by convicting the Appellant without proper finding that penetration which is an essential ingredient in the offence of defilement cannot be proved by the fact that the complainant was pregnant.4.That the learned trial magistrate erred in law and fact by convicting the Appellant yet DNA Report was not brought to court as evidence to prove that he was the biological father of the born child. 3.The prosecution called 5 witnesses in the case while the Appellant defended himself and did not call any witness. Case for prosecution 4.The case for the prosecution was that PC Martin PW1 received information that the Appellant was living with a minor who was pregnant. He and colleagues went and found the Appellant a distance away from his home. They went with him to his home where they found the girl who is the complainant herein (PW2) and a lady called C PW3. They took the Appellant, the complainant and C to the police station. The complainant was taken to Mariakani sub county hospital where she was examined by a clinical officer PW4 who found her to be 13 weeks pregnant. The hymen was absent. PW4 completed a P3 form to that end. He formed the opinion that the pregnancy was secondary to defilement. The Appellant was charged with the offence of defilement. 5.It was the evidence of C PW3 that the Appellant is her nephew. That on 4/7/2021 she returned home and found the Appellant at her home with a girl, the complainant. The Appellant told her that she was his wife and that after some time he would take her to his home. She asked the complainant of her age and she said that she was over 18 years. That the Appellant stayed with the girl at his home as man and wife until the 31/7/2021 when policemen went and arrested them and took them to the police station. 6.The complainant on her part testified that she was at the material time staying with her grandmother. The Appellant was working at their home as a herder and he became her boyfriend. That on 4/7/2021 the Appellant eloped with her and took her to the home of C, PW3. C gave them a room at her house where she started living with the Appellant as husband and wife. That on 31/8/2021 (must have been 31/7/2021) they were arrested by two police officers and taken to the nearby police post. She was taken to Mariakani sub county Hospital where she was examined and found to be pregnant. She stated in cross-examination that she did not disclose her age to C. 7.During the hearing of the case in court the clinical officer PW4 produced the complainant`s P3 form, treatment notes, the scan films and report as exhibits, P.Exh. 1 - 4 respectively. The complainant PW2 produced her health card as exhibit, P.Exh.5. It indicated her date of birth as 1/7/2006. Defence case 8.The Appellant when placed to his defence stated in a sworn statement that he was dealing in charcoal. That he did not know the complainant before and only came to know her in court. Nor did he know C PW3. He denied that he defiled the complainant. He denied that he sired a child with her. He said that he was arrested at a village where he had gone to collect his items. Submissions 9.The Appellant submitted that the trial court did not conduct a voir dire examination in the case as required by the law. That the court having failed to do so the evidence of the complainant is bereft of credence and was unsafe to convict on. 10.It was submitted that the child health card that was produced in court did not have an official hospital stamp which rendered the document invalid. More so that the maker of the document was not called to produce it. Therefore, that the age of the victim was not proved. 11.It was submitted that the clinical officer testified on the pregnancy of the complainant and not on defilement. That his evidence did not link him with her pregnancy. Additionally, that the prosecution did not produce a DNA report showing that he was the biological father of the complainant`s baby. It was submitted that the charge was not proved beyond reasonable doubt. The Appellant urged the court to uphold the appeal. 12.The Respondent on the other hand submitted that the charge of defilement was proved beyond reasonable doubt. That the age of the complainant was proved by the health card produced in court. That the Appellant did not present any evidence to prove that the same was not authentic. 13.It was submitted that the complainant narrated that the Appellant had sexual intercourse with her as a result of which she became pregnant. That her evidence was corroborated by the clinical officer PW4 who on examining her and formed the opinion that her vagina had been penetrated. 14.On identification of the Appellant, it was submitted that the Appellant was a person well known to the complainant as he was her boyfriend. That there could be no mistaken identity on him. The Respondent urged the court to uphold both the conviction and the sentence. Analysis and determination 15.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.” 16.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. 17.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.” 18.In the present case, the complainant produced a child health card that indicated her date of birth as 1/7/2006. I have examined the said document. It was issued after the complainant was born. I find it to be a credible document in proving the age of the complainant. The age of the complainant was accordingly proved at 15 years. 19.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.” 20.Penetration may be proved by the oral evidence of the victim or by way of circumstantial evidence. In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the Court of Appeal held that:-“…..the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”. 21.Also in George Kioji v Republic, Criminal Appeal no. 270 of 2012 Nyeri, the same court stated as follows:“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond any reasonable doubts that the defilement was perpetrated by the accused person. In deed under the proviso to section 124 of the Evidence Act Cap 80 laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone if the court believes the victim and records the season for that believe,” 22.Indeed, section 124 of the Evidence Act allows a 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 holding. 23.It was the evidence of the complainant that the appellant eloped with her and took her to the home of C PW3 where they started living as man and wife. That they lived together for close to a month until the 31/7/2021 when they were arrested by policemen. The evidence that the Appellant was living with the complainant as man and wife at the home of C was corroborated by C herself, PW3. The complainant after being arrested was taken to hospital where she was examined and found to be pregnant. 24.The evidence of the complainant coupled with circumstantial evidence surrounding the case proves that the appellant defiled the complainant. In Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR, the Court of Appeal set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction and stated:“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Subject; (iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 25.In the case against the Appellant, it was proved that he lived with the complainant as man and wife for close to a month. This circumstantial evidence unerringly pointed to the Appellant as having penetrated the complainant. Penetration was proved against the Appellant. 26.The complainant initially told the trial court when she appeared for hearing that she was aged 16 years. The court dispensed with voir dire examination because she was not by her statement a child of tender years. She was later recalled to produce the health card that then indicated that she was aged 15 years. The law is that voir dire examination need only be conducted on a child of tender years. A child of tender years was stated in the case of Kibangeny Arap Korir v Republic [1951] EA 92 to mean a child under the age of 14 years. The complainant in this case was above the age of 14 years when she was found living with the Appellant as his wife. There was no requirement in law for the court to conduct a voir dire examination on her before admitting her evidence. 27.The Appellant in his defence denied knowing the complainant. It was the evidence of the complainant that the Appellant was previously working at their home as a herder. That she eloped with him and started living with him as his wife. The Appellant never challenged that evidence when he cross-examination the complainant when she testified in court. He similarly did not challenge the evidence of C PW3 that he was at the time of his arrest living with the complainant at her, C`s, home. In view of all this evidence the Appellant was lying that he did not know the complainant. His defence can only have been an afterthought and a mere denial. 28.The Appellant submitted that the prosecution did not produce a DNA report to prove that he was the biological father to the baby born to the complainant. The charge that the Appellant was facing was one of defilement of a child and not ascertainment on the paternity of the baby born to the complainant. The law is that defilement can be proved by way of evidence and not necessarily by way of medical evidence. In the case of AML vs. Republic (2012) eKLR, the Court of Appeal stated that:“The fact of rape or defilement is not proved by D.N.A. test but by way of evidence.” 29.In view of the foregoing, I find that the case against the Appellant was proved beyond reasonable doubt. The appeal is bereft of merit and is thereby dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 20TH DAY IF MAY, 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch HB for Ngina Mutua for RespondentAppellant – present virtually at G.K. Prison ManyaniCourt Assistant - Rahma