https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11466

Jefa v Republic (Criminal Appeal E099 of 2024) [2026] KEHC 11466 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 11466 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E099 of 2024 JN Njagi, J July 17, 2026 Between Safari Jefa Appellant and Republic Respondent (Appeal from criminal conviction and sentence by Hon. S.K. Ngii, PM, in Mariakani Sexual Offence Case No. E084 of 2021 delivered on 4/4 2023) Judgment 1.The Appellant was convicted and sentenced to serve a 15-year imprisonment 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. The particulars of the offence were that on diverse dates between 1st December 2020 and 1st August 2021 at (name withheld) area in (name withheld)location in (name withheld)Sub County within Kilifi County, he unlawfully and intentionally caused his penis to penetrate the vagina of S.C. (herein referred to as the complainant), a child aged 16 years. 2.The Appellant was aggrieved by the conviction and the sentence and lodged the instant appeal on the following amended grounds of appeal:1.That the learned trial magistrate erred in law and fact by convicting the appellant on unreliable and questionable medical exhibits.2.That the learned trial magistrate erred in law and fact by convicting the appellant without appreciating the contradictions and uncorroboration of the prosecution witnesses.3.That the learned trial magistrate erred in law and fact by failing to consider that the prosecution failed to establish their case beyond reasonable doubt. Case for prosecution 3.The case for the prosecution was that the complainant met the Appellant in the month of August 2020 and he started to seduce her. That later on the Appellant took her to a guest house at(name withheld) area of (name withheld) and they engaged in sex. Over time they engaged in sex at the same place on several occasions. That in 2021 they went to the same place for sex. In the month of September 2021 she missed her periods. She told the Appellant that she was pregnant and he gave her some tablets. She took them and she started to bleed from her vagina. She was taken to hospital. She was examined and found to have aborted. Her mother PW2 and her father PW3 went to the hospital. They were told that she had aborted. They interrogated her and she told them that it is the Appellant who had impregnated her. They reported the matter to the police. 4.A clinical officer at Mariakani sub county hospital PW4 testified that the complainant was taken to their hospital on 17/10/2021. She examined her and found that she was pregnant. A CT scan was done that showed that she had incomplete abortion. PW4 completed her P3 form. 5.The case was investigated by Cpl Fatuma Ali of Mariakani police station. It was her evidence that the complainant was on the 18/10/2021 taken to the police station by her mother. They reported that the complainant had been taken to hospital with vaginal bleeding and after examination she was found to have undergone an abortion. The complainant reported that she had a sexual relationship with one Safari Jefa who had gotten her pregnant. That the person had given her tablets in order to abort. The complainant gave her treatment notes from Mariakani hospital. She was given the complainant`s birth certificate that indicated that she was born on 23/8/2005. She arrested the person, the Appellant, and charged him with the offence. 6.During the hearing of the case in court, the clinical officer PW4 produced the P3 form, the treatment notes and the ultra CT scan as exhibits, P.Exh.2, 3 and 4 respectively. The investigating officer produced the birth certificate as exhibit, P.Exh.1. Defence Case 7.When placed to his defence, the Appellant stated in an unsworn statement that he comes from Mariakani weigh bridge. That he is a boda boda rider. That he was arrested at his boda boda base and taken to Mariakani police station. He was charged with defilement. That when he was issued with witness statements, he established that the complainant was alleging that he had slept with her at Kamunyuni guest house. He denied that he did so. 8.The appeal was canvassed by way of written submissions. Submissions 9.The Appellant submitted that the case was not proved beyond reasonable doubt. That there were contradictions in the evidence adduced by the prosecution witnesses. More so that he was not identified as the person who committed the offence. 10.The Respondent on the other hand submitted that the charge against the Appellant was proved beyond reasonable doubt. That the ingredients of the offence of defilement were proved to the required standard. That the trial magistrate found the evidence of the complainant to be consistent, cogent and reliable. That the charge was supported by credible medical evidence. Analysis and determination 11.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.” 12.The appellant argued that the case against him was not proved beyond reasonable doubt. 13.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. 14.In the case against the Appellant, a birth certificate was produced that showed that the complainant was born on 23/8/2005. The offence was stated to have been committed between December 2020 and 1st August 2021 during which time the complainant was aged 15 years. Proof of birth of a person by birth certificate is a credible way of proving the age of a person, see Edwin Nyambogo Onsongo vs. Republic (2016) eKLR. It was therefore proved that the complainant was at the material time aged 15 years though the charge sheet indicated that the complainant was of the age of 16 years. 15.On penetration, the complainant testified that the Appellant seduced her and she succumbed to his advances. That she engaged in sexual intercourse with him on several occasions and she conceived. That she informed him of her pregnancy and he gave her some tablets to swallow so as abort the baby. She did so and she started to bleed from her vagina. She was taken to hospital and was found to be undergoing an abortion. 16.The Appellant denied penetrating the complainant and argued that he was convicted on unreliable medical evidence. The medical evidence presented before the court indicated that the complainant had undergone incomplete abortion. There was no medical evidence to directly link the appellant on penetration on the complainant or on her pregnancy. However, absence of medical evidence in a defilement case is not fatal as defilement can be proved by other ways such as by the oral evidence of the complainant or by circumstantial evidence, see Kassim Ali v Republic Criminal, Appeal No. 84 of 2005. The fact that there was no medical evidence in this case to link the appellant with the offence was not fatal to the case. The question is whether the oral evidence presented before the court was sufficient to sustain the conviction. 17.The trial magistrate upon examining the evidence adduced before him stated in his judgment that the complainant struck him as a forthright and candid witness. The magistrate considered the provisions of section 124 of the evidence Act which permits the court to convict on the sole evidence of a complainant victim in sexual offences involving children where the court is satisfied that the child is telling the truth and gives reasons for such a finding. 18.I have re-examined the evidence adduced against the appellant on penetration on the complainant. I find that there were sufficient reasons to believe her evidence. The complainant was taken to hospital and was found to be undergoing an abortion. It was not possible that she was lying that it is the Appellant who gave her tablets to procure an abortion. The complainant gave the name of the guest house where the sexual intercourse used to take place. The evidence of the complainant that the Appellant penetrated her severally must have been true. 19.The Appellant argued that he was not identified as the perpetrator of the offence. The complainant testified that she was in a sexual relationship with the Appellant. That she even knew him by seeing him on the road before he started courting her. That she interacted with him from August 2020 and got pregnant in August 2021.She had by then properly known him for a period of one year. There cannot have been any mistaken identity on the Appellant. The Appellant is a boda boda operator. The complainant cannot be lying that she used to see him on the road before he started seducing her. He never put any question to the complainant during cross-examination that they never had any interaction between themselves. I find the Appellant`s unsworn defence to have been a mere denial. 20.The appellant argued that there were contradictions in the evidence of the prosecution witnesses. I have not seen any material contradiction in the case that can cast doubt on the evidence adduced by the prosecution witnesses. The argument has no substance. 21.The upshot is that I find the Appellant to have been convicted on solid evidence. I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 17TH DAY OF JULY, 2026J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Rahma