https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11372

Ahamed v Republic (Criminal Appeal E090 of 2025) [2026] KEHC 11372 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 11372 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E090 of 2025 JK Biomdo, J July 15, 2026 Between Fauzi Khamisi Ahamed Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. J N Mwaniki (CM) in Malindi CM (SO) Case No. E142 of 2023) Judgment 1.The appellant herein, Fauzi Khamisi Ahamed, was convicted on 5 August 2024 by the Chief Magistrate’s Court, Malindi for 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 7 years imprisonment. Aggrieved, he filed the present appeal challenging both conviction and sentence. 2.The particulars of the offence are that on diverse dates between February 2023 and 6 November 2023 in Magarini Sub-County within Kilifi County, intentionally and unlawfully caused his penis to penetrate the genital organ namely vagina of PSC a girl child aged 17 years old. The appellant faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act, with particulars stating that on diverse dates between February 2023 and 6 November 2023 in Magarini Sub-County within Kilifi County, intentionally and unlawfully touched the vagina of PSC a girl child aged 17 years with his penis. 3.The appellant denied the charges prompting the trial where the prosecution called three (3) witnesses. PW1, SCM, the complainant testified that she was 17 years having been born on 17 June 2006. In February 2023, she met the appellant along the road who greeted her and asked her name and age. She told him that she was 17 years where he asked if she was married and told her he was looking for a wife. She agreed and they exchanged contacts. Later he called her to his home and they had sex severally. 4.She felt pregnant, they went to her mother to seek her blessings for their marriage, she agreed and she went to live with the appellant as his wife in May 2023. She later on testified that the appellant informed her mother in August 2023 and that she was living with her sister prior to that. During cross examination, she testified that she informed the appellant that she was not sure about her age, its only her mother who knows. In re-examination, she testified that she told the appellant she was aged 18 years. 5.PW2 Cpl Stephen Mwita based at [Particulars Withheld] police station testified that on 6 November 2023, the complainant was taken by her sister who reported that she was pregnant and a minor. She did not have a birth certificate hence age assessment was done. The complainant told him that she was staying with the appellant as husband and wife. He testified that he had a copy of her birth certificate showing that she was born on 4 December 2005, the P3 form, treatment notes and ultra sound. He sought to produce the said documents but the appellant objected. 6.PW3 Elijah Bidii a clinical officer based at General hospital testified that he had worked in the facility for 3 years together with Mr Rimba who had completed the P3 form and was familiar with his handwriting and signature. He testified that medical examinations conducted on the complainant revealed a broken hymen and was 14 weeks pregnant. He produced the, treatment notes (exhibit 1), x-ray scan (exhibit 3), post rape care form and P3 form (exhibit 4 (a) and (b). 7.At the close of the prosecution’s case, the trial court ruled that a prima facie case had been established and placed the appellant on his defence. The appellant through sworn evidence, admitted knowing the complainant as his girlfriend but denied having sexual intercourse with her. He went on to say that she informed him that she was 17 years old. During cross examination, he denied that the complainant was 17 years old and stated that she had told him that she was not sure of her age. That he sought to establish her age from her parents. 8.DW2, MKR, the complainant’s mother testified she was 17 years old but denied that the appellant defiled her. She further stated that any sexual intercourse between them was consensual and that they had agreed to get married. DW3, Jumwa Chengo denied that the appellant defiled the complainant but that they engaged in voluntary sexual intercourse. 9.At the close of the trial, the trial court rendered judgment, found the appellant guilty as charged, convicted him and sentenced him to 7 years imprisonment. 10.Aggrieved, the appellant filed the present appeal where he raised ten (10) grounds of appeal which are summarized as follows:i.The trial court erred in law and fact by failing to find that the prosecution has not proved its case beyond reasonable doubt.ii.The trial court erred in law and fact by failing to find that the complainant had represented herself to be 18 years old.iii.The trial court erred in law and fact by placing reliance of the hearsay evidence of PW3.iv.That the trial court erred in law and fact by allowing the birth certificate and other medical evidence to be produced by PW2 without any basis in law.v.That the sentence of 7 years was unconstitutional, illegal and discriminative for failing to consider the pre-sentence report and the appellant’s mitigation. 11.At the hearing of the appeal, both parties filed written submissions which they relied on. The Appellant represented by Mr Wesley M.R Gichaba learned counsel filed their written submissions dated 7 May 2026 whereas the Respondent represented by Ms Alice Ochola learned counsel, filed their written submissions on dated 21 January 2026 as well as a Notice of Enhancement of Sentence dated 21 January 2026 where they sought for enhancement of sentence from 7 years imprisonment to 15 years imprisonment. 12.The appellant submitted that his constitutional rights to fair trial under Article 50 (2) (b), (c) and (g) were violated since the record did not disclose the appellant’s language of choice, that he was not informed his right to legal representation and no legal counsel was assigned to him, that he was charged before investigations were complete and that he was not afforded adequate time and facilities to prepare his defence. 13.The appellant further submitted that the ingredients of the offence of defilement were not proved. That PW1 gave conflicting information regarding her age, at one point stating that she was 17 years during examination in chief, in cross examination she said she was not sure of her age while during re-examination, she said she was 18 years old. 14.The appellant challenged the birth certificate where he submitted that the complainant’s date of birth stated therein, ie 4 December 2005 significantly differed from her testimony where she said she was born on 17 June 2006. It was further pointed out that the birth certificate was produced as an exhibit despite the objection by the appellant which was not overruled by the trial court. 15.On the issue of penetration, appellant submitted that it must be established by the prosecution that a male partially or fully penetrated the victim’s vagina or anus. Reliance was placed on Langat Dinyo Domokonyang vs Republic (2017) eKLR. The appellant argued that the complainant did not give evidence of penetration but simply said that she had sex with the appellant. The case of Mercy Chelangat vs Republic (2022) eKLR was cited in support of the contention. 16.The appellant further challenged the admissibility of the documents produced by PW3 arguing that he was not the maker and no basis was laid for him to produce them. It was further submitted that a missing hymen was not by itself evidence of penetration where the case of John Maina Muya vs Republic (2020) eKLR was cited. 17.On identification of the perpetrator, it was submitted that the mere fact that the complainant and appellant knew each other was not proof that the appellant was the perpetrator of the offence. 18.On sentencing, it was contended that the trial court erred by failing to consider the pre-sentence report which recommended a non-custodial sentence. The court of appeal decisions in Joshua Gichuki Mwangi vs Republic, Nyeri Criminal appeal No. 84 of 2016 was cited. 19.On the notice of cross appeal by the respondent that sought enhancement of the sentence, it was submitted that it could not be introduced in the middle of directions but that it should have been issued and served immediately upon service of the petition of appeal. It was further submitted that the respondent did not file any appeal or cross appeal evincing its intention to appeal on the sentence and that in its current state, the notice contravenes the appellant’s rights to fair trial as guaranteed under Article 50 of the Constitution. The cases of SKY vs Republic (2023) KEHC 20432 and MGK vs Republic (2020) eKLR were cited. The court was urged to set aside the conviction and sentence, and acquit the appellant. 20.The respondent opposed the appeal and submitted that being the first appellate court, the court is duty bound to re-evaluate the evidence and arrive at its own conclusion on whether the evidence support the charge. See Odhiambo vs Republic (2005) eKLR. 21.It was submitted that all ingredients of the offence were proved beyond reasonable doubt; that the element of age of the victim was proved by PW1, the birth certificate (exhibit 2) and corroborated by the complainant’s mother, DW2. It was contended that the appellant did not challenge the authenticity of the birth certificate and that pursuant to Section 83 (1) of the Evidence Act, there is a presumption that the certificate was genuine. 22.On the element of penetration, it was submitted that PW1’s evidence established that the appellant had sex with the complainant in his house severally. This was corroborated by medical evidence which confirmed that the complainant was 14 weeks pregnant. In response to the appellant’s submission on lack of corroboration, it was further submitted that by dint of Section124 of the Evidence Act, this could be proved by the sole evidence of the complainant even without any other evidence. 23.On the issued of identification of the appellant as the perpetrator, it was submitted that the appellant was identified by recognition since the two were in a relationship since February 2023, a fact that was duly acknowledged by the appellant. 24.The respondent further submitted that the trial court considered the appellant’s defence but found that it could not outweigh or dislodge the prosecution’s case. 25.On the issue of production of the birth certificate, P3 form, treatment notes and ultra sound by PW2 and PW3 respectively, the respondent conceded that they were illegally produced since the two witnesses (PW2 and PW3) were not the makers but contended that this did not prejudice the appellant. It was submitted that age could be proved by many other ways including by way of age assessment report, baptismal card etc as held by the Court of Appeal in Francis Omuromi vs Uganda, Criminal Appeal No. 2 of 2000. That age was thus proved by the PW1 and DW2 both of who testified that she was 17 years at the time of commission of the offence. 26.On the sentence, the respondent reiterated that Section 8 (4) of the Sexual Offences Act prescribes a minimum sentence of 15 years imprisonment and that by dint of the Supreme Court decision in Petition No. E018 OF 2023, Republic vs Joshua Gichuki Mwangi where the court held that minimum sentences are lawful and binding, the trial court was bound to issue a custodial sentence. 27.It was submitted that the trial court erred in awarding the sentence of 7 years which was below the mandatory minimum of 15 years set by Section 8 (4) of the Act. The court was urged to enhance the sentence to 15 years imprison as per the notice of enhancement pursuant to Section 354 (3) (b) of the Criminal Procedure Code. 28.The respondent urged the court to dismiss the appeal in its entirety and enhance the sentence as provided above. Analysis and determination 29.This being the first appeal, the court has a duty to re-evaluate and examine the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of Oiruri Mose Vs R (2013) eKLR. 30.The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174, stated thus;“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 31.The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act. The said Act provides:“8 (1)A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.(2)……………………………………………………..(3)………………………………………………………(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 specific elements or ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani V Republic, Criminal Appeal No. 72 Of 2013 and George Opondo Olunga Vs R (2016) eKLR. 33.Drawing from the above, the issues for determination in this appeal are as follows: -a.Whether there was proof of penetration.b.Whether there was proof of age of the victim.c.Whether the appellant was positively identified as the perpetrator.d.Whether the appellant established the defence provided under Section 8 (5) & (6) of the Sexual offences Act.e.Whether the sentence of unconstitutional and unlawfulf.Whether the sentence should be enhanced 34.The court has analysed the facts of the case, examined and re-evaluated the evidence on record, the grounds of appeal filed by the appellant, considered the written submissions by the parties, the merit of the cross-appeal and relevant case law on the subject. Proof of penetration 35.Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. 36.“Genital organs” is defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. 37.The appellant contended that penetration was not proved, that there was no corroboration and challenged the production of P3 form, treatment notes and ultra sound by PW3. The respondent conceded that production of the documents by PW3 was irregular but argued that by dint of Section124 of the Evidence Act, the appellant could be convicted on the sole evidence of the complainant and that PW1’s evidence was cogent on the issue of penetration even without any other corroborating evidence. 38.Section 124 of the Evidence Act provides as follows as regards the requirement of corroboration in criminal cases;“124.Corroboration required in criminal casesNotwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 39.To the court’s understanding, by dint of Section 124 of the Evidence Act, penetration can be proved through the complainant’s testimony or other circumstantial evidence, and though desirable, corroboration by medical evidence is not mandatory. The court of appeal in Kassim Ali vs Republic [2006] eKLR, the observed as follows:“So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”. 40.PW1 testified that she met the appellant in February 2023 where they subsequently became friends and had sexual intercourse severally. She later became pregnant and moved in with the appellant where they stayed together until his arrest. PW 3 produced medical evidence comprising of the treatment notes, X ray scan, post rape care form and p3 form, which showed that the appellant was examined at Malindi Sub-County hospital on the 6 and 7 November 2023 where it was established that her hymen was broken and she was 14 weeks pregnant. 41.The court has also examined the record as regards the production of the medical documents by PW3 and note that on 22 February 2024, PW2 Cpl Stephen Mwita sought to produce the medical evidence. The appellant objected and they were not admitted as exhibits. On 29 April 2024, PW3 Elijah Bidii, a clinical officer at Malindi Sub-County hospital testified and sought to produce the medical evidence. The appellant did not object and they were duly admitted as exhibits 1, 3 and 4 (a) and (b) respectively. 42.Section 77 of the Evidence Act allows production of medical reports signed by a medical practitioner to be used as evidence in criminal proceedings without calling the maker. See Republic vs Teresia Wairimu Thuo (2019) KEHC 1533 (KLR). The court finds that the medical documents were properly produced by PW3 and form part of the evidence. 43.It was established that PW1 became expectant as a result of the sexual intercourse. This corroborates her testimony and other medical evidence showing broken hymen that there was penetration of her vagina through sexual intercourse which resulted in pregnancy. The court finds that there was sufficient evidence to prove penetration as an ingredient of the offence. Proof of age of the victim 44.The age of the victim is a critical ingredient of the offence and must be proved. See Kamau V Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) where it was held;“Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 45.Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi V Republic, Criminal Appeal No. 21 Of 2015 [2017]. 46.PW1 testified that she was 17 years which testimony was corroborated by DW2 who was her mother. The appellant challenged production of the birth certificate by PW2. The record shows that the on 22 February 2024, the appellant objected to the production of the birth certificate. The trial court made no comment on whether the objection was upheld or rejected and the record is silent. 47.The trial court at page 2 of its judgement dated 5 August 2024 stated, “ PW2……The officer identified and produced the complainant’s birth certificate showing she was born on 4 December 2005.” . This was clearly an error. Once the appellant objected to its production, the trial court was required to inquire into the matter and make a ruling/finding on whether to allow or disallow the objection, which it did not do. There is no where in the record where it is indicated that the birth certificate was produced as an exhibit. The trial court thus erred in relying on the birth certificate as proof of age. 48.The court finds that the birth certificate was not properly produced and shall be expunged from the record and disregarded. However, as stated earlier, age can be proved in various ways, including through the evidence of the complainant or her parents. PW1 and DW2 both testified that the complainant was 17 years old and the court is satisfied that that evidence sufficiently proves the age of the victim. Positive identification of the perpetrator 49.PW1 identified the appellant as the assailant. She testified that they had sex severally after meeting in February 2023 and subsequently moved in together. The appellant testified that she knew the complainant as his girlfriend though they were not married. This corroborates evidence by PW1 on the nature of the relationship between the two. 50.The court of appeal, in Anjononi & another vs R (1980) KLR 59, stated thus; “recognition of an assailant is more satisfactory, more reassuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.” Evidence on record shows that the complainant duly recognized the appellant as the assailant. The court is satisfied that this element was proved. Whether the appellant established the defence provided under Section 8 (5) & (6) of the Sexual offences Act. 51.The court will now consider the question whether the appellant’s defence that he believed that the complainant was over 18 years old is plausible. In his appeal, the appellant contended that the trial court failed to find in his favour despite the complainant’s evidence that she deceived him that she was 18 years old. 52.In the court’s view, section 8 (5) of the Act qualifies the provisions of Section 8 (1) to 8 (4) which penalizes defilement. Section 8 (5) & (6) of the Sexual Offences Act provides as follows with regard to this matter;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. 53.In Charo vs Republic (2016) KEHC 5619 (KLR) the court of appeal had this to say concerning section 8 (5) and (6) of the Act,“Subsection (5) states that it is a defense to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. We think it a rather curious provision in so far as it is set in conjunctive as opposed to disjunctive terms which would seem to be more logical as opposed to the current rendition. We would think that once a person has actually been deceived into believing a certain state of things, it adds little to require that his such belief be reasonably held. Indeed, a reading of subsection (6) seems to add a qualification to subsection (5)(b) that separates it from the belief proceeding from deception in subsection (5)(a). We would therefore opine that the elements constituting the defence should be read disjunctively if the two sub-sections are to make sense.” 53.Although PW1 testified during examination in chief that she told the appellant that she was 17 years old, she said during cross examination that she told the appellant that she was not sure of her age and that its only her mother who knows. During re-examination, she said that she told the appellant that she was 18 years old. The appellant, on the other hand, during examination in chief testified that the complainant told her that she was 17 years old. Later on during cross examination, he denied that the complainant was 17 years of age but instead she told him that she was not sure of her age. He went on to testify that he took steps to establish the complainant’s age from her parents. 54.The court remains alive to the fact that the burden of proof rested on the prosecution and not the appellant. The court of appeal in Jamal Abdulahi Osman and another vs Republic (2013) KECA 394 KLR stated;“In the case of Sekitoleko vs Uganda [1967] EA 531 a case which has been applied before by this Court, the Chief Justice Sir Udo Udoma had this to say in relation to alibi evidence: “(i) as a general rule of law the burden on the prosecution of proving guilt of a prisoner beyond reasonable doubt never shifts whether the defence set up is an alibi or something else (R V. Johnson [1961] 3 All E.A. 969 applied; Leonard Aniseth V. Republic [1963] E.A. 206 followed)” 55.The PW1 admitted on her own that she deceived the appellant that she was over 18 years of age. She went on to say that she did not know her age and its only her mother who knew, which fact was reiterated by the appellant. This gives credence to her earlier assertion that did not her age and lied to the appellant that she was over 18 years. There is also evidence that the appellant took steps to establish her age giving further credence to his earlier assertions. 56.The court finds merit in the appellant’s contention that in all the circumstances of the case, he reasonably believed that the complainant was over the age of 18 years. The burden of proving that deception or belief fell upon the appellant, but the burden is on a balance of probabilities and is to be assessed on the basis of the appellant’s subjective view of the facts. The court notes that being 17 years old, she could easily pass of as 18 years. A reasonable person would easily believe her. The relationship between the two was consensual and they started living together as husband and wife, and visited the complainant’s parents with a view to crystalize the marriage. The court finds merit in the appellant’s defence. 57.The court is satisfied that the requirements of Section 8 (5) and (6) of the Sexual Offences Act have been fully established by the appellant so as to entitle him to that defence. This being a complete defence, the appellant is absolved from culpability. The court finds that the conviction is thus unsafe. 58.Section 354 (3) (a) (i) of the Criminal Procedure Code empowers the High Court in an appeal from a conviction, to reverse the finding and sentence, and acquit or discharge the accused. Consequently, the court makes the following orders: -a.The appeal against conviction and sentence has merit and is accordingly allowed.b.The conviction and sentence by the trial court is quashed and the appellant is acquitted. 59.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE