https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12185

JKM v Republic (Criminal Appeal E082 of 2024) [2026] KEHC 12185 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12185 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E082 of 2024 MW Mutuku, J July 30, 2026 Between JKM Appellant and Republic Respondent (Being an appeal from the Judgment of the trial court, Hon. L.W Gitari (RM) in Makindu Law Courts MCSO No. E059 of 2021) Judgment 1.The appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. 2.The particulars of the offence were that the appellant, in the month of December 2020 in Makindu Sub County, the appellant intentionally and unlawfully caused his penis too penetrate the vagina of DRK a child aged 17 years. 3.The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that the appellant, in the month of December 2020 in Makindu sub- County, the appellant caused his penis to touch the vagina of DRK, a child aged 17 years. 4.The appellant was convicted of the offence of defilement and was sentenced to 15 years' imprisonment 5.The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:a.That the learned trial magistrate erred if facts and law by convicting the appellant without considering that the complainant lied about the circumstances which the offence occurred.b.That the trial court erred in both law and facts by convicting the appellant without considering that the age of the complainant was not proved beyond reasonable doubt.c.That the learned trial magistrate erred if facts and law by convicting the appellant by relying on erroneous ultra sound method in approximating the date of the alleged offence.d.That the trial court erred in both law and facts relying on suspicious and fictitious evidence.e.That the learned trial magistrate erred misdirected himself in failing to inform the appellant of his right of representation by advocate, whereas he was facing serious charges. 6.The appellant was arraigned in court on 16th June 2021, where he pleaded not guilty. From the court record, the accused person seems to have engaged Advocate to represent him in this case, but as time progressed, he opted to have elected to represent himself. 7.The victim told the court that at the time of the alleged offence, she was a class 7 pupil at [Particulars Withheld] Primary school. She was on her way home when the accused person who was herding sheep saw her. He followed her from behind and tripped her to the ground, and later had sex with her. 8.At the time of the offence, she told the court that she was 17 years old. She produced a Certificate of birth, showing her date of birth as 14th January 2003. When the mother suspected that the victim was pregnant, she reported the matter to Makindu police station, and the victim taken to hospital. After delivering the baby, she, the appellant and the baby were taken to the Government Laboratory for examination to establish the paternity of the child. 9.RN is the mother to the complainant. She told the court that in the month of June 2021, her attention was drawn to the fact that her daughter was not okay. The victim informed her and that she had been defiled by a man by the name K The matter was reported to the police, and the victim referred to hospital, where the pregnancy was confirmed. Later, after delivery, the victim’s mother accompanied the victim, the minor, the police officer for the DNA test. Her evidence was that the accused as not a person known to her, and that she only met him on that day. 10.Dr. Josephine Mueni Maitha is a medical officer based at Makueni hospital. She examined the P3 form in respect of the victim, who was then 17 years old. Though the victim could not recall the exact date of the offence, she could recall that it was on a Thursday in December 2020. After clinical tests, the ultra sound established that the victim was 6 months and two weeks pregnant. She produced the P3 Form, PRC form, the patient treatment cards and the Ultra sound Image and report as exhibits in this case. 11.Mr. Mwidadi Omar is a government chemist. He told the court that the laboratory received blood samples from Makindu police station. The samples were accompanied by an exhibit memo that showed that the samples were extracted from the appellant, the victim and a minor, born by the victim of the alleged offence. The request by the investigating officer was for the government chemist to establish if the appellant was the biological father the baby born by the victim of the alleged sexual assault. Upon analysis, he established that the Appellant herein was the biological father of the baby. The DNA report was produced as an exhibit in this case. 12.No .2xxxx7 Elizabeth Maina was the investigating officer in this case. She confirmed that when the case was reported to Makindu police station, she took the victim to hospital for medical examination. After she delivered, she caused DNA samples to be taken and escorted for DNA analysis. She produce the exhibit memo, birth certificate and inventory of the samples taken as exhibits in this case. She later charged the accused with the offence before the court. In cross examination, she confirmed to the court that the brother to the Appellant had also be arrested and charged on allegations of having defiled the same victim on different dates. 13.When placed on his defence, the Appellant denied the charges. He told the court that in the month of December, he was nowhere near where the minor resided. He went on to tell the court that he had been arrested alongside his brother because of the victims pregnancy, but he could not tell why the victim had decided to frame him up with the charges before court. 14.The appeal was canvassed by way of written submissions, which I have carefully read and considered. Submissions 15.The Appellant submitted that the prosecution evidence was riddled with contradictions and inconsistencies, and that the case was fabricated and fragmented in order to secure a conviction. 16.The Appellant also argued that his rights under Article 50(2)(g) and (h) of the Constitution were violated by the arresting officer. He submitted that such a violation entitled him to an acquittal, as a nullity cannot be cured by overwhelming evidence. Analysis 17.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different…..” 18.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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, see Peters v. Sunday Post, [1958] E. A. 424. 19.The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14: The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 20.Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 21.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 22.The Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 23.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:‘“Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.” 24.. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues.The appeal raises only two issues, that is:a.Whether the trial court failed to comply with the provision of Article 50(2)(g) and(h) of the Kenyan Constitution 2010.b.Whether the offence was proved to the required standards. 25.The court will thus address the appeal on each of the two issues raised. The first issue is that there was a mistrial due to non-compliance with article 50(2) (g) and (h) of the Constitution. The said article provides as follows:(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; 26.The appellant had an advocate representing him from the onset. However, he later chose to defend himself. He never informed the court the reason why his advocate did not appear for trial, nor was he denied an adjournment to wait for his advocate or instruct a new one. The right was thus not breached. 27 .The Court of Appeal in Manyeso v Republic [2023] KECA 827 (KLR) held thus:“The appellant did not raise the issue of legal representation either in the trial court and the High Court. The appellant participated in the trial and cross-examined the witnesses, and it was not evident that he suffered any or any substantial injustice. The appellant’s rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were not violated.” 28.The question of legal representation was not raised at all in the lower court. The appellant dealt with the matter effectively. There is no demonstration of the appellant suffering any substantial injustice. Looking at cross examination, the appellant was able to effectively raise all questions and there was no evidence that the situation could change. However the most important aspect is that the appellant chose not to exercise his right. 29.The next issue is the question of proof of the offence of defilement. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(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.(5)…(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 30.On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows:(1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years(2)It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.(3)The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.(4)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141)(5)The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 31.In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 32 .The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016)eKLR stated as follows in respect of proving the age of a victim in cases of defilement:... 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. 33.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:“Age of the victim of the 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.” 34.It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:“In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.” 35.In this case, the minor stated that she was a standard 7 pupil at [Particu] primary school. That on the date of the alleged offence that she was on her way from school. Her Certificate of birth indicated that she was born on 14th January 2003, and as such at the time of the alleged offence, she was under 18 years old. The age of the minor was thus proved. 36.The minor testified and identified the appellant as the perpetrator. The appellant was well known to the victim and the offence also took place during the day. When the mother sought to know what had happened, the victim was categorical that she had been defiled by the appellant. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other” 37.The court is satisfied that the appellant was recognized by the minor. 38.The last issue is penetration. The medical evidence showed there was penetration. The minor herself testified on what happened to her. It was the mother who noted and suspected that her daughter was not okay when she took her to hospital, an ultra sound was done, and the doctors confirmed that she was 6 months and two weeks pregnant. Later after she delivered, DNA samples were taken and the government Chemist confirmed that the appellant was the biological father to the child born by the victim of this offence. 39.Section 2(1) of the Sexual Offences Act defines penetration as:The partial or complete insertion of the genital organs of a person into the genital organ of another person. 40.In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.” 41.It is thus not a defence that the injuries were not serious or the penetration was not complete. The appellant in this case, it has been proved beyond reasonable doubt defiled the complainant, which resulted to a pregnancy and the birth of an issue by the name V.M. The penetration was thus proved. 42.The net effect is that the appeal lacks merit and is accordingly dismissed. 43.The trial court meted out a sentence of 15 years. 44.The learned trial magistrate does not seem to have factored the period of time the appellant spent in remand custody. The appellant was arrested on 21st June 2021, and sentenced on 17th October 2024. I hereby order that the sentence of 15 years should run from 21st June 2021. Determination 45.In the circumstances, I make the following orders: -a.The Appeal on conviction lacks merit and is accordingly dismissed.b.The sentence meted out lawful and should run from the date stated above.c.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED ON THIS 30TH DAY OF JULY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKU.JUDGEIn the presence of: -Miss Omol for the StateAppellant in personCourt Assistant – Mr.Kibet