EGK v Director of Public Prosecution (Criminal Appeal E001 of 2025) [2026] KEHC 8676 (KLR) (12 June 2026) (Judgment)

EGK v Director of Public Prosecution (Criminal Appeal E001 of 2025) [2026] KEHC 8676 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8676 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E001 of 2025 S Mbungi, J June 12, 2026 Between EGK Appellant and Director of Public Prosecution Respondent (Being an appeal against the conviction and sentence of Hon. P. Maina -CM delivered on 17th December 2024 at Murang’a Law Courts in Criminal Case SO No. E005 OF 2024) Judgment 1.The appellant herein was charged with 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 at around June in 2023 at an unknown date and time in Gakunja sublocation within Murang’a County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of GWM, a child aged 16 years. 2.He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge were that at around June in 2023 at an unknown date and time in Gakunja sublocation within Murang’a County, the appellant intentionally and unlawfully touched the vagina of EBW a child aged 16 years with his penis and hands. 3.The appellant pleaded not guilty to all the charges and the matter proceeded to full trial. The prosecution called four witnesses in support of its case. Facts at trial 4.PW1 was GWM, the complainant. She testified on oath that she was born on 9th February 2007 and was therefore aged 16 years at the material time and produced her birth certificate in court. She recalled that in June 2023, on a Friday night, she had attended a church kesha at Maragua Ridge in the company of her brothers, cousins and the appellant, whom she knew as a bishop and also as a relative, being a cousin through her father’s family. That the kesha began at about 9.00 p.m. and they left at about 1.00 a.m. before it ended. Since the appellant’s home was nearby, he suggested that they spend the night at his house. Upon arrival, she was directed to sleep in a bedroom used by the appellant’s children, where she slept together with two young children aged about three and four years. Her brothers and cousins slept in the sitting room and in a separate room. The complainant stated that while asleep, she was woken up by a touch and saw the appellant standing beside the bed without his trousers or pants on. She testified that there was light from an outside security light which enabled her to see him clearly. That the appellant told her to remain silent, removed her trouser and underpants, and thereafter had sexual intercourse with her. After the act, he threatened her not to disclose the incident, stating that he would do something bad and kill himself, and that she would regret it. She further stated that the appellant’s wife was not present in the house that night. 5.PW1 testified that she did not immediately report the incident due to fear. She later returned to school, where she began feeling unwell. Upon going home, her mother noticed changes in her condition and took her for a pregnancy test, which turned positive. Upon being questioned by her mother, she disclosed that the appellant was responsible for the pregnancy. She stated that when her father later confronted the appellant, the appellant begged for forgiveness and was chased away. The matter was thereafter reported at Kambirwa Police Station and she was referred to hospital. In cross-examination, she denied that she and the appellant had been lovers. In re-examination, she maintained that she had not had sexual intercourse with any other person. 6.PW2 was LWK, the complainant’s mother. She testified that the complainant was her second-born daughter and confirmed, by reference to the birth certificate, that the complainant was born on 9th February 2007. She stated that on 25th October 2023, the complainant came home from school and appeared unwell, particularly because she did not want to eat. After observing this for about two weeks, PW2 took her for a pregnancy test, accompanied by the appellant, after a church service and the test turned positive. After the positive pregnancy test, the complainant disclosed to PW2 that the appellant was responsible for the pregnancy and that he had threatened her not to reveal the incident. PW2 then informed the complainant’s father later that evening. When the appellant came to their home that night, he was chased away by the complainant’s father. The matter was later reported to Kambirwa Police Station, where a P3 form was issued, and the complainant was taken to hospital for examination and ultrasound. She produced the P3 form, ultrasound and treatment notes in court. PW2 maintained that the appellant was known to the family, that there was no grudge between them, and denied framing him. 7.PW3 was No. 25xxxx PC Faith Mbolu of Kambirwa Police Station, the investigating officer. She testified that on 20th November 2023 at about 8.20 a.m., PW1 and PW2 went to the police station and reported that the complainant (PW1) who was aged 16 years had been defiled and was pregnant. PW3 stated that the complainant confirmed that she had been defiled by the appellant, EGK , after she slept in his house following a church kesha, and that she conceived as a result of the incident. PW3 escorted the complainant to Murang’a Level 5 Hospital, where it was confirmed that she was four months pregnant. That she recorded statements from the victim and her mother, visited the scene of crime, and established that the accused had fled by that time. That the accused was later traced and apprehended. PW3 stated that she knew the accused previously, as he had two other defilement cases, and the scene of crime was the same. She confirmed that the accused had an opportunity to commit the offence after the kesha, as they attend the same church. 8.PW4 was John Ndereba Mwangi, a clinical officer at Murang’a Level 5 Hospital. He testified that he examined the complainant who was alleged to have been defiled by a person known to her, and filled her P3 form on 28th November 2023. He stated an obstetric ultrasound was conducted and confirmed that the complainant was 22 weeks pregnant. PW4 produced the P3 form, ultrasound images and treatment notes as exhibits. He further testified that, pursuant to a court order, DNA testing was conducted after the complainant gave birth. The DNA report dated 10th July 2024 concluded that there were 99.9% more chances that EGK (the accused) was the biological father of the complainant’s child. That marked the close of the prosecution case. 9.The trial court considered the evidence adduced and found that the prosecution had established a prima facie case against the accused and accordingly placed him on his defence. Defence Case 10.DW1 was the appellant, EGK. He gave sworn evidence testified that the complainant and her mother used to go to his home to undertake casual work. He stated that he came to know the complainant through that arrangement and later proposed to marry her. That he was unaware that the complainant was underage or that she was still in school, as her mother had allegedly informed him that the complainant had dropped out of school. 11.He further testified that he introduced the complainant to his mother as his wife and that they lived together for some time before the complainant became pregnant. DW1 stated that when the pregnancy was discovered, the complainant’s parents asked him to assist in procuring an abortion so that the complainant could continue with school, but he refused on religious and moral grounds. He contended that his refusal to facilitate the abortion was the reason he was arrested and charged. The appellant admitted upon being shown the DNA report, that the child born by the complainant was his and that he had believed the complainant was 18 years old, based on what he alleged he had been told by the complainant and her mother. That marked the close of the defence case. 12.Upon consideration of the evidence adduced at trial, the submissions filed and mitigation, the trial court sentenced the appellant to sixteen years imprisonment. 13.Having been dissatisfied by the decision of the trial court, the appellant lodged the present appeal vide a petition of appeal filed in court on 6th January 2025, citing the following grounds of appeal;a.That, the learned trial magistrate erred in points of law and fact by failing to find that the elements of the charge were not proved beyond reasonable doubt.b.That the learned trial magistrate erred in points of law and fact by failing to find that the complainant acted and adduced evidence through coercion, threat and intimidation.c.That the learned trial magistrate erred in points of law and fact by failing to find that the prosecution’s evidence was tainted with material contradictions, inconsistencies and discrepancies.d.That the learned trial magistrate erred in law and fact in failing to find that the appellant’s sworn defence statement was plausible, as the prosecution was unable to disprove it.e.That the learned trial magistrate erred in law and fact in failing to consider the period that the appellant stayed in remand while sentencing, in accordance with section 333(2) of the Criminal Procedure Code.f.That the learned trial magistrate erred in law and fact by failing to consider the appellant’s mitigation in accordance with sections 329 and 216 of the Criminal Procedure Code 14.Consequently, the appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. 15.The appeal was canvassed by way of written submissions. On record are submissions filed by the appellant, and submissions dated 8th December 2025, filed by the respondent; both of which this court has carefully considered. Appellant’s submissions 16.In his submissions the appellant included amended grounds of appeal as follows:a.That, the learned trial magistrate erred in matters of law and fact by failing to find that the evidence on record availed me, the appellant herein a statutory defence under Section 8 (5), (6) of the Sexual Offences Act No. 3 of 2006.b.That, the learned trial magistrate erred in matters of law and fact by shifting the burden of proof to the defence.c.That, the 16 years imprisonment sentence is tainted by illegality, harsh and inappropriate for reasons of: -(1)Failure to factor in the time spent in legal custody (remand) during trial in violation of Section 333(2) of the Criminal Procedure Code.(ii)Exceeding the 15 years statutory minimum sentence under Section 8 (4) of the Sexual Offences Act No. 3 of 2006. 17.The appellant submitted that the trial court failed to properly consider that, on the facts of the case, he was entitled to rely on the statutory defence under section 8(5) and (6) of the Sexual Offences Act. He argued that the complainant had deceived him into believing that she was over the age of eighteen years, and that his belief in that regard was reasonable in the circumstances. He relied on the decision in Eliud Waweru Wambui v Republic [2019] eKLR, where the Court of Appeal considered the nature of the defence under section 8(5) and (6) of the Sexual Offences Act. He submitted that the evidential burden placed upon an accused person invoking that defence is on a balance of probabilities, and that the trial court wrongly failed to evaluate his defence from that perspective. 18.The appellant further submitted that the complainant’s conduct was inconsistent with the allegation of coerced sexual intercourse. He argued that, according to the complainant’s own evidence, she spent the night at his house in the company of her brothers and cousins, yet she did not raise an alarm during or after the alleged incident. He also faulted the prosecution for failing to call the said brothers and cousins as witnesses, contending that their evidence would have been material in confirming or disproving the complainant’s account. 19.It was also the appellant’s submission that the complainant did not disclose the alleged defilement until after she was found to be pregnant. He argued that this conduct pointed to consensual sexual relations rather than defilement by force, coercion or intimidation. He maintained that he had lived with the complainant as his wife with the knowledge and consent of her mother, and that the case only arose after the complainant’s father was released from prison and the appellant allegedly refused to assist in procuring an abortion. 20.The appellant further averred that the trial court shifted the burden of proof to him. He argued that once he raised the defence that he had been deceived as to the complainant’s age, the prosecution bore the legal burden of disproving his defence. He further submitted that if the prosecution considered his defence to have raised new matters, it ought to have applied to call rebuttal evidence under section 112 of the Criminal Procedure Code. He relied on Victor Mwendwa Mulinge v Republic [2014] eKLR for the proposition that failure to rebut such defence evidence was fatal to the prosecution case. 21.On sentence, the appellant submitted that the sentence of sixteen years’ imprisonment was unlawful, harsh and excessive. That the trial court failed to take into account the period he had spent in remand custody from 11th January 2024 to 17th December 2024, contrary to section 333(2) of the Criminal Procedure Code. The appellant further submitted that the trial court erred by imposing a sentence above the statutory minimum of fifteen years under section 8(4) of the Sexual Offences Act. He argued that the trial court ought to have considered the mitigating circumstances placed before it, and further, that the complainant being an adult now, was legally capable of consenting to a spousal union with the appellant in the best interested of her child as cousins are not within the prohibited categories of blood relations under Section 20 of the Sexual offences Act Respondent submissions. 22.The respondent opposed the appeal and submitted that the appellant’s conviction under section 8(1) as read with section 8(4) of the Sexual Offences Act was lawful and supported by overwhelming evidence. It was submitted that the prosecution proved all the ingredients of the offence of defilement, namely the age of the complainant, penetration, and positive identification of the appellant as the perpetrator. 23.On the appellant’s reliance on the statutory defence under section 8(5) and (6) of the Sexual Offences Act, the respondent submitted that the said defence was not available to the appellant in the circumstances of the case. The respondent argued that the burden lay upon the appellant to prove, on a balance of probabilities, that the complainant deceived him into believing that she was over eighteen years and that he reasonably believed her to be an adult, a burden which the appellant failed to discharge. 24.It was contended that the complainant was the appellant’s cousin, a school-going minor aged 16 years, and that the appellant knew her well. The respondent further pointed out that the appellant had a close family relationship with the complainant, had known her over a long period, and had even organized birthday celebrations for her when her father was in prison. In the respondent’s view, those circumstances negated any reasonable belief that the complainant was above eighteen years. 25.The respondent further submitted that the trial court did not shift the burden of proof to the appellant. Rather, the trial court considered the appellant’s defence and properly rejected it for want of merit. It was the respondent’s position that the appellant offered no cogent or objective evidence to demonstrate that he had taken any reasonable steps to ascertain the complainant’s age. 26.On sentence, the respondent submitted that the sentence of sixteen years’ imprisonment was neither illegal nor excessive. It was submitted that section 8(4) of the Sexual Offences Act provides for a minimum sentence of fifteen years’ imprisonment, and that the court was entitled to impose a sentence above the minimum where aggravating circumstances existed. 27.The respondent argued that the appellant was both a church minister and a cousin to the complainant, and that he abused a position of trust and authority over a vulnerable minor who was under his care. The respondent therefore submitted that the sentence of sixteen years, being only one year above the statutory minimum, reflected the seriousness of the offence, the need for deterrence, and the need to protect minors from sexual exploitation; and prayed for the court to dismiss the appeal in its entirety. Analysis and Determination 28.This being the first appellate court, it is guided by principles set out by the court of appeal in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the court stated as follows:“The duty of the first appellate court is to analyze and re-evaluate the 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 facts and 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 that 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 decisions.” 29.I have looked at the grounds of appeal, the submissions filed by the parties, the lower court proceedings and the trial court’s judgment. 30.I isolate the following key issues for determination which I shall proceed to analyze hereunder:i.Whether the prosecution proved the age of the complainant beyond reasonable doubtii.Whether the appellant was entitled to the statutory defence under section 8(5) and (6) of the Sexual Offences Actiii.Whether the sentence of sixteen years’ imprisonment was lawful and whether the trial court complied with section 333(2) of the Criminal Procedure Code. Issue I : Whether the prosecution proved the age of the complainant beyond reasonable doubt 31.The appellant was charged with defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. Section 8(1) and 8(4) provide as follows:“ 8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed 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.” 32.The ingredients of the offence of defilement are settled. In EK alias E v Republic [2024] KEHC 1065 (KLR), the High Court stated as follows:“It is now well settled law that 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: i. Age of the complainant; ii. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and iii. Positive identification of the assailant.” 33.In the present appeal, the ingredients of penetration and identity of the perpetrator were not seriously contested. Indeed, the appellant admitted having had sexual intercourse with the complainant and further admitted, upon being confronted with the DNA report, that the child born by the complainant was his. The real contest, as framed in the amended grounds and submissions, concerns the complainant’s age and the appellant’s assertion that he believed her to be above eighteen years. 34.On proof of age, the Court of Appeal position, as restated in EK alias E v Republic [2024] KEHC 1065 (KLR), is that age may be proved through credible documentary, oral or medical evidence. The court quoted Edwin Nyambogo Onsongo v Republic as follows:“...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.” 35.In this case, PW1 testified that she was born on 9th February 2007. PW2, her mother, confirmed the same date of birth. PW3, the investigating officer, obtained and produced the complainant’s birth certificate, which indicated that the complainant was born on 9th February 2007. The offence was alleged to have occurred in or around June 2023. On simple computation, the complainant was aged sixteen years at the material time. 36.The birth certificate was a cogent and reliable document. It was consistent with the oral evidence of PW1 and PW2. No evidence was placed before the trial court to impeach that document or to suggest that the complainant was above eighteen years at the time of the offence. I therefore find that the prosecution proved beyond reasonable doubt that the complainant was a child aged sixteen years at the material time. That placed the offence squarely within section 8(4) of the Sexual Offences Act. Issue II: Whether the appellant was entitled to the statutory defence under section 8(5) and (6) of the Sexual Offences Act 37.The appellant’s principal argument was that the trial court failed to consider the statutory defence under section 8(5) and (6) of the Sexual Offences Act. Section 8(5) and (6) provide as follows:“(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.” 38.The statutory defence has two limbs. First, there must be evidence that the child deceived the accused into believing that she was over eighteen years. Secondly, the accused must demonstrate that he reasonably believed the child to be over eighteen years, having regard to all the circumstances, including the steps he took to ascertain her age. 39.The appellant submitted that he believed the complainant was eighteen years old because the complainant and her mother allegedly represented to him that she was an adult and had dropped out of school. He further argued that he had lived with the complainant as his wife, allegedly with the consent of her mother, and that the complaint arose only after he refused to facilitate an abortion. 40.I have carefully considered that defence against the evidence on record. The appellant was not a stranger to the complainant. He was her cousin. He knew her family. He was also a church minister known to the complainant and her family. PW1 testified that the appellant used to organize birthdays for her, her sister and cousin. She further testified that she was a Form Three student at [Name Withheld] School. Her evidence was that she knew the appellant well, not as a stranger, but as a relative and church leader. The appellant’s own evidence weakened, rather than strengthened, his defence. He conceded in cross-examination that, as a pastor, he understood that marriage ought to be with an adult. He also conceded that in church an identity card would be required before a marriage could be recognized. Despite that knowledge, he produced no evidence that he ever asked for or saw the complainant’s identity card, birth certificate, school records, or any other document to ascertain her age. 41.The defence under section 8(5) and (6) is not established by a bare assertion that the complainant appeared older or that someone said she was an adult. The statute expressly requires the court to consider all the circumstances, including the steps taken by the accused to ascertain age. In this case, there were no reasonable steps shown. The surrounding circumstances instead pointed to knowledge, or at the very least willful disregard, of the complainant’s minority. 42.I am also not persuaded that the trial court shifted the burden of proof. The prosecution bore the legal burden of proving the ingredients of defilement beyond reasonable doubt. It did so by proving age through a birth certificate, penetration through the complainant’s evidence, pregnancy, medical evidence and DNA, and identity through recognition and the appellant’s own admission. Once the appellant invoked section 8(5) and (6), he bore the evidential burden of laying a basis for that defence, which he did not. 43.I therefore find that the trial court properly considered the appellant’s defence and rightly rejected it. The conviction was supported by evidence that proved the charge beyond reasonable doubt. The appeal against conviction therefore fails. Issue III: Whether the sentence was lawful and whether section 333(2) of the Criminal Procedure Code was complied with 44.The appellant was sentenced to sixteen years’ imprisonment. He contended that the sentence was harsh, excessive and unlawful because section 8(4) of the Sexual Offences Act provides for a minimum sentence of fifteen years. He further argued that the trial court failed to consider the period spent in remand custody from 11th January 2024 to 17th December 2024. 45.Section 8(4) prescribes a sentence of ‘not less than fifteen years.’ The phrase ‘not less than’ denotes a statutory minimum, not a maximum. The trial court therefore had jurisdiction to impose a sentence above fifteen years, provided that the sentence was justified by the circumstances of the case. 46.The record shows that the trial court considered both mitigating and aggravating circumstances. The appellant stated in mitigation as follows:“I have 3 children. Their mother is not present at home. I understand they may not be going to school. My mother takes care of the children. I have suffered in remand. I have also learnt a lot while in remand. I am a changed man. I have reformed. I urge Court to allow me to go take care of my children. Those children include the one I sired with the complainant herein. The complainant will pardon me to enable me take care of the child too. I pray for forgiveness.” 47.The trial court expressly considered that mitigation and stated:“I have considered the accused mitigation vis-à-vis the nature and circumstances of the offence plus the sentences for the offences of defilement as set out in Section 8 of the sexual offences Act. I have also considered the accused’s mien and demeanor during trial and in his mitigation.”The trial court further stated:“It is clear from the Court record that the accused is a family man with 2 children from his marriage with his estranged wife. He clearly has family responsibilities and he now acknowledges extending to the baby that was born by the complainant pending the hearing of this case. Accused clearly continued to admit he sired that child and is ready to take up his responsibility as a father. Those are clearly mitigating factors in this sentence, coupled with the period spent in remand.” 48.From the foregoing, the complaint that the trial court failed to consider mitigation is not borne out by the record. The trial court not only heard the appellant’s mitigation, but expressly identified his children, his family responsibilities, his admission of paternity of the complainant’s child, and the period spent in remand as mitigating factors.The trial court also identified aggravating factors in the following terms:“…….It is however clear that the accused took advantage of the position he held as a church minister to commit the instant offence. He also abused the trust of a person who would help him in taking care of his young children during the school holidays. He clearly also abused the trust his vulnerable cousin and church follower had in him to enable him commit the offence and pressured her to remain silent. Were it not for pregnancy, the accused’s unlawful acts could have gone unreported………….. Being a Church Minister, the accused was a person in authority over the complainant on matters that touched on spirituality and morality. He was also an elder cousin who appeared to have earned the trust of the complainant and her family….” 49.In light of those aggravating circumstances, I find no illegality in the trial court imposing a term of sixteen years’ imprisonment. The sentence was only one year above the statutory minimum and was adequately explained by the trial court. 50.The remaining question is whether section 333(2) of the Criminal Procedure Code was complied with. The Revised Sentencing Policy Guidelines, 2023 state as follows:“Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.” 51.The Court of Appeal recently restated the same position in Juma v Republic [2024] KECA 1206 (KLR), where it held:“Be that as it may, under section 333 (2) of the Criminal Procedure Code, the period that the accused has been in custody should be taken into account whilst computing his sentence. He was arrested on 29th January 2018 and was never released on bail or bond. As such, the sentence should start running from 29th January 2018.” 52.In the present case, the appellant stated that he was arrested on 11th January 2024 and remained in custody until he was sentenced on 17th December 2024. The trial court mentioned the period spent in remand as one of the mitigating factors, but the final sentencing order did not expressly direct that the sentence would run from the date of arrest or that the remand period had been deducted. 53.In order to give full effect to section 333(2) of the Criminal Procedure Code, it is necessary to interfere with the sentence only to that limited extent. The term of sixteen years’ imprisonment is lawful and shall remain undisturbed. However, the sentence shall be computed from 11th January 2024, being the date of arrest. Disposition 54.For the reasons set out hereinabove, I hereby the following final orders:i.The appeal against conviction is hereby dismissed. The conviction of the appellant by the trial court is upheld.ii.The appeal against sentence is partially allowed. Pursuant to section 333(2) of the Criminal Procedure Code, the sentence of sixteen (16) years imprisonment shall be computed from 11th January 2024, being the date the appellant was arrested and placed in remand custody. 55.It is so ordered. 56.Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 12TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angong’a/VelmaAppellant present online.Mr. Ndege for Applicant present online.