https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9846

Athuman v Republic (Criminal Appeal E040 of 2023) [2026] KEHC 9846 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9846 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E040 of 2023 BK Njoroge, J July 2, 2026 Between Hassan Maitha Athuman Appellant and Republic Respondent (Being an appeal from the judgment, conviction, and sentence passed at the Kaloleni Law Courts in Criminal Case No. E010 of 2022 by Hon. Rita Amwayi, PM, delivered on 6th April 2023) Judgment 1.Criminal trials are neither chess matches to be won on procedural technicalities, nor are they forums where the constitutional threshold of proof can be diluted. The law demands a meticulous balance. This Appeal challenges a conviction for defilement by pitting alleged evidentiary contradictions and documentary technicalities against the substantive oral testimony of a minor and her medical examiner. Background Facts 2.The Appellant was charged at the Kaloleni Law Courts with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the same Act. He pleaded not guilty to both charges. 3.During the trial, the prosecution called witnesses to establish its case. PW1, the minor victim, identified as FLH, testified and positively identified the Appellant as the perpetrator. She testified that he was well known to her as a friend, a neighbour, and a classmate. The Appellant did not deny these facts during the trial. PW1's testimony regarding the act of penetration was corroborated by PW3 Mwangolo Chigulu, a clinical officer. The prosecution also produced a copy of a birth certificate as Prosecution Exhibit 1 to establish the victim's age. 4.The Appellant did not dispute or controvert the evidence of penetration during cross-examination. Furthermore, he raised no objections regarding the authenticity or production of the documentary evidence. 5.At the conclusion of the trial, the Learned Trial Magistrate found that the prosecution had proved its case beyond a reasonable doubt. On 6th April 2023, the Appellant was convicted of the main charge and sentenced to serve twenty (20) years in prison. Grounds of Appeal and Reliefs Sought 6.The Appellant filed a Memorandum of Appeal seeking to quash the conviction and set aside the sentence. He relies on three (3) main grounds:1.The Learned Trial Magistrate erred in law and fact by failing to consider sharp contradictions and gaps in the prosecution witnesses' testimonies, rendering Section 124 of the Evidence Act inapplicable.2.The Trial Court erred in failing to find that the prosecution did not prove the offence beyond a reasonable doubt under Sections 107 and 109 of the Evidence Act.3.The Trial Court erred by failing to consider the prosecution's non-compliance with Sections 64 and 66 of the Evidence Act regarding the certification of primary and secondary evidence. 7.The Appellant prayed that the Appeal be allowed, the conviction be quashed and the sentence be set aside. 8.The Appellant has filed written submissions in support of the grounds of appeal. 9.The Respondent filed written submissions strongly opposing the appeal. It submitted that the elements of defilement were conclusively proved. That the Appellant waived his right to challenge the documents by failing to object at trial. The appeal was disposed of by way of written submissions. Issues for Determination 10.The Court has considered the Memorandum of Appeal, the entire record as well as the submissions by the parties. The Court frames three (3) issues for determination as follows:a.Whether the prosecution proved the core ingredients of the offence beyond a reasonable doubt in light of the alleged contradictions.b.Whether the admission of uncertified documentary evidence violated Sections 64 and 66 of the Evidence Act, rendering the trial defective.c.Whether the sentence of 20 years imprisonment is lawful. Analysis 11.This is a first appeal. This Court is fully alive to the nature of its statutory mandate. The core duty of a first appellate Court is to conduct an independent and comprehensive review of the trial record. It must not passively rubber-stamp the Lower Court's decision or merely check if there was some minimum evidence to justify the conviction. See Okeno v. Republic [1972] EA 32 where the Court of Appeal stated as follows:“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 courts 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”. Whether the prosecution proved the core ingredients of the offence beyond a reasonable doubt in light of the alleged contradictions. 12.For the offence of defilement to be established, the prosecution must prove three key ingredients: the age of the victim, penetration, and the positive identification of the offender. See George Opondo Olunga v. Republic [2016] eKLR. 13.On identification, the victim's evidence was based on recognition, not a fleeting visual identification of a stranger. PW1 testified that the Appellant was a friend, a neighbour, and a classmate. The Appellant did not controvert this prior relationship. The law is settled that recognition of a familiar person is highly reliable. See Peter Musau Mwanzia v. Republic [2008] KECA 92 (KLR). 14.On penetration, PW1 gave a direct account of the ordeal. Her oral testimony was medically corroborated by PW3, the clinical officer. The Appellant failed to cross-examine or challenge the witnesses on the specific fact of penetration. Uncontroverted evidence is deemed an admitted fact in law. The Minor told the Trial Court as follows:“He then told me to remove my leso and spread on the ground. I did so. He then told me to undress I was in a skirt. I then removed my skirt and the panty. He then told me to lie on the leso which was on the ground. He undressed by removing his trouser and underwear. He then came on top and he had sexual intercourse. He started by inserting fingers into my vagina and then penetrated my vagina using his penis. When he was done he dressed up and I dressed up. I then picked up my leso and we sat on the leso. He told me that it was 3.00am we left.” 15.This Court’s review of the evidence of the minor who was 15 years old leaves no doubt that there was penetration. The narrative by the minor is clear that her vagina was penetrated using the Appellant’s penis. This proves the ingredient of penetration. 16.On the issue of age, the same was proved by way of a birth certificate produced as an exhibit. 17.The Appellant alleges that there were sharp contradictions in the prosecution's case. However, the Trial Court evaluated the witness testimonies and found them consistent. Section 124 of the Evidence Act requires caution when relying on a victim's testimony in sexual offences. Here, the victim's evidence did not stand alone; it was anchored by medical corroboration. Minor discrepancies, if any exist, do not go to the root of the prosecution's case and cannot be weaponized to defeat substantive justice. Whether the admission of uncertified documentary evidence violated Sections 64 and 66 of the Evidence Act, rendering the trial defective. 18.The Appellant submits that the Trial Court illegally admitted a photocopy of a birth certificate without strict compliance with Sections 64 and 66 of the Evidence Act. 19.This argument is an afterthought. The trial record explicitly confirms that the Appellant did not object to the production or authenticity of any documents during the trial. The law does not permit procedural ambushes. An accused person cannot sit silently during the production of secondary evidence, fully participate in the trial, and then attempt to invalidate the conviction on appeal citing the "original document" rule. 20.The Appellant was represented by Counsel Mr. Egesa who was present when the medical treatment notes, P3 Form and Lab Results were produced by PW3 on 29th September, 2023. Counsel did not raise any objections. Counsel did not object when PW4, PC Walter Chenze, identified the photocopy of the birth certificate. It had earlier been produced by the minor without any objection from the Appellant. 21.Furthermore, Appellate Courts have consistently pronounced that the production of a photocopy does not automatically invalidate a trial. In the case of Obara v. Republic [2024] KEHC 424 (KLR), the High Court stated that it is not material that a birth certificate is a photocopy as long as there is corroborative proof of age. Similarly, the Court of Appeal in Maurice Wegesa Wambura v. Republic [2020] KECA 371 (KLR) held that age can be proved by various forms of evidence, including photocopies, provided the evidence is credible and reliable. 22.In this case, the copy of the birth certificate was fully corroborated by the oral testimony of PW1. The age of the minor was proved beyond a reasonable doubt. Even DW2 Mwanzala Rama Athman, a brother and witness for the Appellant, testified in cross-examination, that he did not know the age of the victim, but she was not over 18 years. Whether the sentence of 20 years imprisonment is lawful. 23.The Appellant was sentenced to twenty (20) years imprisonment. Section 8(3) of the Sexual Offences Act prescribes a mandatory minimum sentence of twenty years for this specific offence. 24.The Supreme Court of Kenya recently settled the debate on mandatory minimum sentences in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR). The Supreme Court clarified that mandatory minimum sentences for sexual offences remain completely lawful and binding. Courts possess no jurisdiction to reduce them or apply the Muruatetu rationale out of sympathy. The sentence imposed by the Learned Trial Magistrate was perfectly lawful. 25.In concluding, the Court notes that there was no violence during the incidence. The victim’s description of the events tends to show an older young man professing love to her and leading her to have sexual intercourse. The law is clear that a minor cannot consent to a sexual act. It matters not that love language was used to induce the victim to give in. The law protects the innocence of a child, be it a boy or a girl from sexual advances. The law recognises that a child can be groomed to sexual acts by people she or he looks up to and trusts. The victim was well known to the Appellant who ought to have protected her and not abused her by introducing her to illicit and premature love. Determination 26.The prosecution proved its case beyond a reasonable doubt. The Appellant’s appeal is devoid of merit and must fail. This Court orders as follows:1.The Appeal is hereby dismissed.2.The conviction and the sentence of 20 years imprisonment passed on 6th April, 2023 are Hereby Upheld. 27.It is so ordered. DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026NJOROGE BENJAMIN K.JUDGEJudgment delivered in the presence ofAppellant in person at Malindi Prison.Miss Mutua for the State.Mr. John Paul - Court Assistant.