https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7136

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEH** **CRIMINAL APPEAL NO. E063 OF 2025** **FAHIM HUSSEIN Alias FAHIM PILIPIL………..….APPELLANT** **VERSUS** **REPUBLIC………………………………………………RESPONDENT** *(Appeal from the original conviction and sentence by Hon. F.M.Mulama, RM in Lamu Principal Magistrate’s Court Sexual Offence Case No.E001 of 2025 delivered on 2/10/2025)* **JUDGMENT** 1. The Appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(4) of the [Sexual Offences Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2006/3) No.3 of 2006 and sentenced to serve 15 years imprisonment. The particulars of the offence were that on the 19th April 2025 at around 2200 hours at (name withheld) in Lamu East sub county within Lamu County he intentionally and unlawfully caused his penis to penetrate the anus of O.A.Y. (herein referred to as the complainant/victim), a child aged 17 years. 2. The Appellant was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that: 3. That the learned magistrate erred in law and facts in failing to find that the evidence of the complainant was unreliable and not credible. 4. That the learned magistrate erred in law and facts by failing to find that the medical evidence adduced by the medical officer fell short of proving penetration, 5. That the learned magistrate erred in law and facts in by failing to give reasons for believing the evidence of the complainant and failed to warn himself of the dangers of convicting on evidence of a minor. 6. That the learned magistrate erred in law and facts in failing to adequately consider the appellant`s defence. 7. That the learned magistrate erred in law and facts in failing to consider that the sentence meted on the Appellant was harsh, unjust and unconstitutional. 8. The case for the prosecution was that the complainant was at the material time aged 17 years and was attending junior school. That on the evening of the material day he was attending tuition class. He left for home at 10pm. On the way he met with the Appellant on the road. The Appellant asked him to have anal sex with him and he would pay him some money. There were some madrasaa classrooms next to where they were. The Appellant opened the door to the madrasaa with a key and they entered inside. They went to the roof top of the third floor of the building. The appellant unaddressed him and placed a mat on the floor. He then unaddressed himself and inserted his penis into the complainant`s anus. He did so until he ejaculated. He asked him to go home. 9. That on the complainant arriving home at 11pm his mother PW2 saw him with paint on his hands and on the back of the head which were from the house where the Appellant had defiled him. She demanded to know how he got it. He refused to tell her. She then called one of his uncles and an aunt but he still refused to tell them. Another uncle was called who took him aside and he disclosed to him what had happened. He and his mother then went to the police station and reported. PC Tubei PW5 took the complainant to Faza sub county hospital where he was examined by Dr. Abdulhalim PW1 who found him with anal tears and lacerations at the 6 o`clock position and sphincter muscles that were moderately loose. He completed the complainant`s P3 form on 22/4/2025. 10. It was the evidence of PC Tubei that the case was reported to the police on 22/4/2025. He recorded statements of witnesses. The Appellant was arrested by PC Kibet PW4. He was charged with the offence. 11. During the hearing of the case in court the mother to the complainant produced the complainant`s birth certificate as exhibit, P.Exh.1. The doctor PW1 produced the treatment notes and the P3 form as exhibits, P.Exh. 2 and 3 respectively. 12. When placed to his defence the Appellant stated that the complainant is his cousin. That on the material day and time he was in his house watching television. That while there he heard the complainant being beaten by his uncle. In the process he heard him mention baby Zoo. His, the Appellant`s uncle, then went to his house and they went with the complainant to the place he said he got the paint from. On getting there he told his uncle that he did not want to be involved with the matter and he left. It was his evidence that he never met the complainant at the time he was accused defiling him. 13. The appeal was canvassed by way of written submissions which the court has considered. **Analysis and determination** 1. This being a first Appeal, this court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In **David Njuguna Wairimu vs Republic** [2010] eKLR, the Court of Appeal stated that: “…**the duty of the first appellate court is to analyse and reevaluate 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 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 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 decision”.** 1. The appeal is based on the grounds that the prosecution witnesses were not reliable nor credible; that the medical evidence of the doctor PW1 fell short of proving the element of penetration; that the trial magistrate did not warn himself of the danger of convicting on the evidence of the complainant; that the trial magistrate erred in law and facts in in failing to adequately consider the Appellant`s defence and that the sentence imposed on the Appellant was harsh and unjust. 2. The ingredients of the offence of defilement are: proof the age of the victim, penetration and the proper identification of the perpetrator - see **George Opondo Olunga vs. Republic [2016] eKLR**. 3. A birth certificate, P.Exh.3 was produced that showed that the complainant was born on 2/7/2008. This placed his age in April 2025 at 17 years. The age of the complainant was therefore proved at 17years. 4. The next issue is whether the Appellant penetrated the complainant. Penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Penetration can be proved by way of oral evidence or by circumstantial evidence. The same can be corroborated by medical evidence. 5. The doctor who examined the complainant found him with injuries on the anus and the sphincter muscles of the anus were loose. 6. The trial court in its judgment held that the finding of the doctor on penetration was not challenged by the defence. That penetration was proved to the required standard. 7. The Respondent submitted that the evidence of the complainant that he was penetrated by the Appellant was confirmed by the doctor, PW1. The Appellant oon the other hand faulted the holding by the trial magistrate that he did not challenge the evidence of the doctor yet he did so in cross-examination. 8. The complainant narrated how the Appellant led him into a madrasaa classroom and defiled him. The doctor who examined him found him with injuries in the anus and the anus muscles were loose. From the evidence of the complainant and as supported by the evidence of the doctor, there was no doubt that the complainant was penetrated into his anus. The injuries were a clear manifestation of penetration. I therefore find that the complainant was penetrated into his anus. The question was whether the Appellant was the person who did so. 9. The Appellant faulted the trial magistrate for not giving reasons for believing the evidence of the complainant as required by section 124 of the Evidence Act. That the magistrate did not warn himself of the dangers of convicting on the evidence of the complainant. That it appeared that the complainant was forced by his mother to implicate him as she became violent on him. 10. The Respondent on the issue of identification submitted that the Appellant was a person well known to the complainant. That identification was by recognition. 11. The trial magistrate in his judgment held that the Appellant and the complainant were cousins and neighbours. That there was electricity light on the road where the complainant met the Appellant. That there was electricity light on the third floor of the building where the appellant defiled him. That the Appellant was positively identified by the Appellant as the perpetrator. 12. The complainant was the only identifying witness in the case. Section 124 of the Evidence Act allows the 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 believing the evidence of the child. There is no requirement in law for the evidence of the minor to be corroborated by any other evidence as long as the court believes that the child is telling the truth. Neither is there a requirement for the court to warn itself before convicting in reliance of the evidence of child victim of a sexual offence. 13. I have on my part reviewed the evidence on identification. There was no doubt that the Appellant was identified as the perpetrator of the offence. The Appellant and the complainant are relatives. The trial magistrate accepted the evidence of the complainant that there was electricity light on the road where the complainant met the appellant. It also accepted the evidence of the complainant that there was electricity light at the roof top where the Appellant defiled the complainant. 14. The complainant said that he talked with the Appellant on the road before agreeing to go with him. He therefore knew whom he was with when he agreed to go with him. I have no reason to doubt the evidence of the complainant. It is clear that he positively identified the Appellant by aid of electricity light both on the road and at the roof top. The Appellant was a person well known to him and there was therefore no possibility of mistaken identity. The identification in the case was by way of recognition. The complainant stayed with the Appellant for a considerable period of time. There was no disagreement of any kind between them. There was no reason for the complainant to falsely implicate the Appellant with the commission of the offence. It is clear that the complainant was a truthful and credible witness. There were sufficient reasons for the trial court to believe the evidence of the complainant. The Appellant`s defence was a mere denial. 15. The Appellant was sentenced to the minimum sentence provided by the law. It cannot be said that a minimum sentence is harsh or excessive. 16. In view of the foregoing, I find the case against the appellant to have been proved beyond reasonable doubt. There is no merit in the appeal and the same is dismissed. **Delivered, dated and signed at GARSEN this 15th day of May 2026.** **J. N. NJAGI** **JUDGE** **In the presence of:** Mr Oluoch for Respondent Appellant- present virtually at G.K. Prison Malindi Court Assistant - Nasra