https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10500

Mitsanze v Republic (Criminal Appeal E080 of 2024) [2026] KEHC 10500 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10500 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E080 of 2024 JN Njagi, J July 10, 2026 Between John Baya Mitsanze Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. James N.Mwaniki, Chief Magistrate, in Malindi Chief Magistrate’s Court Sexual Offence Case No.EO82 of 2023 delivered on 18/7/2024) Judgment 1.The Appellant herein was convicted for an 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 January 2023 and 14th July 2023 at (name withheld) area in Malindi sub-county within Kilifi county he unlawfully and intentionally caused his penis to penetrate into the vagina of JRC (herein referred to as the complainant) a girl aged 17 years. 2.The Appellant was sentenced to serve 10 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:1.That the learned trial magistrate erred in law and facts by holding that the prosecution had proved its case beyond reasonable doubt.2.That the learned trial magistrate erred in law and facts by failing to appreciate the evidence adduced by the prosecution was inaccurate, inconsistent and contradictory to the extent that it was unreliable.3.That the learned trial magistrate erred in law and facts by not appreciating that the age of the complainant had not been proved beyond reasonable doubt to be below 18 years of age.4.That the learned trial magistrate erred in law and facts in holding that the prosecution had proved that there was penetration occasioned by the Appellant.5.That the learned trial magistrate erred in law and facts by dismissing the defense proffered by the Appellant without any sound legal basis.6.That the learned trial magistrate erred in law and facts by failing to consider the mitigation proffered by the Appellant and failed to use his discretion judiciously and ending up handing out a sentence that was very harsh in the circumstances. Case for prosecution 3.The case for the prosecution was that the complainant had at the material time completed her primary school education and was working at a hotel as a waiter. She was staying with a certain woman while working at the hotel. She then met the Appellant who enquired from her as to why she was working and not in school. She told him that her family was not financially stable. The Appellant promised to help her advance her education and take her to a local polytechnic. He gave her Ksh.800/= and asked her to travel to her home area to ger her primary school certificate for him to take her to college. She went home to get the documents but she did not find them. The Appellant started to give her money and gifts. He asked her the direction to his home. She told him. The Appellant went to her home and met her father. He took him gifts and gave him money. Her father then called her home. She travelled home with the Appellant and they met her father. Her father told her that the Appellant had proposed to marry her. Later her father called them home and blessed their marriage and asked them to go and live in peace. They left home. Later her father called them home again and the Appellant gave him beer. A marriage ceremony was done. The Appellant paid her father dowry of Ksh.15,000/=. Her father escorted her to the home of the Appellant in the company of the Appellant. On getting there she cooked for them. After her father left, the Appellant took her to his bed and unaddressed her. He unaddressed himself and leaked her vagina and breasts. He has sex with her. She ran away on the following day. Her father looked for her and took her back to the Appellant`s home where they had sex again. The Appellant told her that he was going to Mombasa for work. He called at her sister to keep watch over her. He did shopping for them. She then reported the matter to a neighbour who referred her to the chief who took her to a children`s home and to the police. She was taken to hospital where she was examined and found to be 4 weeks pregnant. The Appellant and her father were charged. 4.The area Assistant chief PW2 testified that the complainant was taken to him on 14/7/2023 by a person called Mutiso who told her that the girl was being forced to marry an old man. He referred the girl to a woman called S of a rescue center. S later told him that the girl had been examined and found to be pregnant. 5.A police officer at a Kizingo police station Eric Makau PW3 testified that the complainant was taken to the station by a rescue worker from Watamu. He did investigations and found that she was aged 17 years and her father had married her off to the Appellant. He issued her with a P3 form and took her to hospital. Her age was assessed at 17 years. She was examined and found to be pregnant. He traced her father and arrested him. He charged the Appellant with defilement while he charged her father with exposing her to early marriage. 6.A clinical officer at Malindi sub county hospital PW4 testified that the complainant was attended to at their hospital on 21/7/2023. She was examined and found to be 4 weeks pregnant. 7.A dental surgeon at the same hospital PW5 testified that a dental x-ray of the complainant was taken at the hospital on 21/7/2023. He examined the same and formed the opinion that the complainant was aged 17 years. It was his evidence that her wisdom teeth were not fully developed. He said that his opinion has a variation of plus or minus one year. 8.During the hearing of the case in court, the clinical officer PW 4 produced the treatment notes, the lab results, the P3 form and the CT scan as exhibits, P.Exh.1, 2, 3 and 5 respectfully. The dental surgeon PW5 produced the age assessment report as exhibit, P.Exh.4. Defence case 9.When placed to his defence the Appellant defended himself and called 6 witnesses. The Appellant stated in a sworn statement that he is a social worker. That he was a customer at the hotel where the complainant was working and he came to know her. That one day she approached him and told him that she had completed school 2 years ago and wanted to go back to school. He asked her to avail her school documents. He gave her Ksh.850/= for her to travel to her home area to get the documents. He met her after 2 weeks and she told him that she went home and found the documents had gotten lost. He later came to learn that she had attended a local primary school and had been to a local children’s home. That on one day she went to his home and told him that she had been fired from her work. He saw that she wanted to get into an affair with him and for him to marry her. She kept on going to his home. She told him that she had many boyfriends. He told her that he was not interested in marrying her. 10.That the complainant then went to her home and told her father that she had gotten a husband. Her father the 2nd Accused called him and told him that he wanted to see him. He went and met him. Later he went back to the 2nd Accused with his uncle and met the 2nd Accused with his family members. The 2nd Accused asked the complainant whether she had settled on the Appellant and dropped other suitors. She confirmed it. She was asked her age and she said she was 18 years and that her birth day had just been celebrated. He, the Appellant, asked for her birth certificate or any document to prove her age but none was available. They then parted ways. Later the complainant led policemen to his home and he was arrested. 11.The Appellant said that the complainant told him that she was over 18 years. That the 2nd Accused told him that she was born on 20/4/2005 but he obtained a document, D.Exh.1, from her school indicating that she was born on 6/9/2003. He denied that he had sexual intercourse with her and that he impregnated her. He denied that he paid money in form of dowry but said that he used to give her money and food to take to her family. 12.The father to the complainant, DW2 (the 2nd Accused) testified that the complainant was working at Gede. That she went to him and told him that she had gotten a suitor. He called the person by a number she gave him. She left. That around June 2023 she went back home with the Appellant and an uncle to the Appellant. They had a sitting. He asked the complainant to confirm her age as he knew she was not of good conduct. He gave her his blessings to get married. Later policemen went to his home and arrested him. 13.The 2nd Accused denied that he was not paid any money as dowry but said that the Appellant gave out Ksh.2,000/= for complainant`s fare to process her fees and to enable her get an identity card. He said that the complainant was born on 20/4/2005 but her documents got lost. That she had been a student at a children`s home and then at Watamu. That she had boyfriends. 14.A teacher at the primary school the complainant was attending DW3 told the court that he authorised a document D.Exh.1 showing the date of birth of the complainant as 20/4/2005. He said that the source of the information was the antenatal book. He however said that he did not have the admission book in court. 15.An uncle to the Appellant, Ali Baya, DW4 testified that the Appellant went to his home and told him that he wanted to marry a certain girl. They went to the girl`s home and met her father, DW2. They had a sitting. The girl said she wanted to get married. They paid dowry of Ksh.15,000/=. They went away. After a week he heard that the Appellant had been arrested. He said that the girl was in the process of being married by the Appellant but he never got to marry her. 16.A brother to the complainant DW5 stated that the complainant never told him of any attempt to marry her off forcibly. That she once called him to Gede where he found her beaten. She told him that she was beaten by her man one Mutiso. 17.DW 6 said that the complainant is her granddaughter. That she lived with her for 5 years. She noted that she liked men and men were fighting for her. 18.DW7 testified that the complainant is her niece. That she stayed with her in Mombasa for 14 months and noted that she liked men. She caught her with a man in her house and chased her away. 19.The appeal was disposed of by way of written submissions which I perused. Analysis and determination 20.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.” 21.The appeal is based on the grounds that the age of the complainant was not proved; that penetration was not proved; that the evidence of the complainant was contradictory, inconsistent and unreliable; that the trial court dismissed the Appellant`s defence without legal basis and that the court did not consider his defence. 22.Starting with the element of penetration, the trial court in its judgment stated that there was no reason for the complainant to fabricate the evidence on penetration by the Appellant. It accordingly found that the complainant was telling the truth and believed her evidence that the Appellant did engage in sexual intercourse with her. 23.Counsel for the Appellant submitted that the only evidence relied upon by the prosecution to prove penetration was the evidence of the complainant. That the complainant admitted to prior sexual history. That the P3 form merely noted absence of hymen without any signs of recent trauma. That there was no forensic evidence to connect the Appellant with the offence. 24.Counsel submitted that the complainant did not mention the specific dates when the purported sexual intercourse took place which were said in the charge to be between the months of January and July 2023. That for a 17 year old not to recall such dates casted doubt on the veracity of her claims. 25.It was submitted that the complainant was examined on 20/7/2023 and found to be 4 weeks pregnant which suggested a conception date of 20/6/2023. However, that the complainant did not mention any sexual activity with the Appellant in June 2023 which suggested that the pregnancy resulted from other sexual relationships. 26.Counsel submitted that there was no independent witness called to corroborate the claim of the complainant that the appellant paid dowry of Ksh.15,000/=. That the evidence was a lie. 27.It was submitted that the whole story was a fabrication out of vengeance after the Appellant attempted to end his association with the complainant. That the complainant only reported the matter to the police after the Appellant terminated their interactions due to her promiscuous conduct. More so that the complainant was not a credible witness and her evidence was unsafe to be the basis of the conviction on the Appellant. 28.The Respondent on the other hand submitted that the evidence of the complainant that the Appellant engaged in sexual intercourse with her was corroborated by the medical evidence and especially the treatment notes where it was observed that the victim had lacerations on the labia minora. 29.On the issue of pregnancy, it was submitted that the same was not an essential ingredient of the offence of defilement and it was thus immaterial whether the pregnancy belonged to the Appellant or not. 30.I have considered the evidence adduced before the trial court. The Appellant argued that penetration was not proved against him. Penetration is defined in 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. 31.There is no doubt that the Appellant married the complainant in a discussion held at the home of the father to the complainant. The Appellant said that he visited the father to the complainant at his home while in the company of his uncle. That they found the father to the complainant with his family members. Though the Appellant denied that he paid dowry to marry the complainant, his uncle DW4 confirmed that they on that day during the sitting paid dowry of Ksh.15,000/=. The fact that dowry was paid proved the fact of marriage between the complainant and the appellant. 32.The complainant testified that she started living with the appellant after dowry was paid. She said that the Appellant engaged in sexual intercourse with her on two occasions. That the first one was after the marriage discussion when the Appellant took her to his home and started by sacking her vagina and breasts before having penetrative sex with her. That the second time was after her father brought her back to the Appellant after she had escaped from him. 33.There is no reason to doubt the evidence of the complainant that she started living with the appellant after the dowry was paid. There is no reason to doubt her evidence that the Appellant engaged in penetrative sex with her on two occasions that she narrated to the court. There is no reason to doubt her evidence that she escaped from Appellant`s home and her father brought her back. It is not possible that the complainant would have fabricated all this evidence that even implicated her father in marrying her off to the Appellant. She had no reason to lie against her father. There was no truth in the submission by counsel for the Appellant that the evidence on penetration was a fabrication because the Appellant wanted to end his association with the complainant. There was no time during cross-examination that counsel for the Appellant put any question to the complainant that the evidence was fabricated because of any differences between them. There was no grudge between the two that would have led to the complainant fabricating the evidence. The evidence of the complainant that the Appellant penetrated her was true. 34.Having made a finding that the Appellant penetrated the complainant, the question is whether the complainant was under the age of 18 years at the time of penetration. 35.The trial magistrate accepted the opinion evidence of the dental surgeon PW5 that the complainant was aged 17 years. He dismissed the evidence of the Appellant on the document from the complainant`s primary school on the ground that it was obtained in an attempt to come up with a make-up defence. 36.Counsel for the Appellant submitted that the document from the complainant`s primary school showed that she was born on 20/4/2005 which was supported by her father. 37.Counsel submitted that the age assessment report produced by the prosecution was not supported by radiographic evidence and was thus unreliable. More so that even if the court were to accept the age as indicated in the report, it is accepted that medical age estimates are not precise and courts have recognized an error margin of plus or minus 2 years. That this means that the age of the complainant could range between 15 and 19 years. Reliance was placed in the case of E.K. v Republic (2018) eKLR where it was held that:Radiographic methods to evaluate the degree of skeletal development is said to be the most accurate parameter to ascertain the chronological age of children. The use of the words “to estimate” makes it clear that medical methods in use raise questions about accuracy and reliability, they are to say the least imprecise, they have an error margin of 2 years and cannot be considered as conclusive evidence of age. 38.The Respondent on their part submitted that the evidence of the complainant that she was at the time aged 17 years was corroborated by the report of the dental surgeon PW5 who assessed the age of the complainant at 17 years. That the trial court accepted this finding. That the letter produced by the Appellant in an attempt to prove that the complainant was at the time aged 18 years was obtained after the Appellant was charged. 39.I have considered the evidence on the age of the complainant. The importance of proving the age of the victim in a defilement case was stressed in the case of Hilary Nyongesa v Republic (Eldoret Criminal Appeal No 123 of 2009) where Mwilu J (as she then was) stated that:“Age is such a critical aspect in Sexual Offences that it has to be conclusively proved….And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.” 40.It is trite that the age of a person may be proved in various ways. In Edwin Nyambogo Onsongo vs. Republic (2016) eKLR the Court of Appeal held that:“... 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.” 41.The document produced by the teacher from the complainant`s primary school DW3 shows that the document is a transfer form of the complainant from a local children`s home to the primary school. It captures the date of birth of the complainant as 20/4/2005. DW3 said that the source of the information contained in the document is the admission book but that he did not have the said book in court. He said that he is the one who authorised the document (not clear what he meant). The document has a stamp of the primary school and a date of 6/9/2023. 42.From the evidence, DW3 does not claim to have authored or issued the document. The document does not bear his name or signature. He did not state why the document was issued to the Appellant in the first place when he was not a parent or guardian to the complainant. He said that the source of the information contained in the document was the admission book which he did not present before the court. He did not explain why he could not avail the admission register in court. More so he did not state the person who issued the document and why the person could not come to court to produce the document himself. It is clear that the document is suspect. In the absence of the register, the information contained in the document was not authenticated and its source was not known. The trial magistrate was right in dismissing the document. 43.The complainant in her evidence stated that she was aged 17 years and that she was born in 2006, though she could not recall her date of birth. It was her evidence that it is a teacher at the children`s home who told her her age. That the children`s home gave her documents on her age. The teacher who told her her age was not called to testify. Neither were documents from the home containing her age produced in court. 44.That notwithstanding, the complainant stated that she celebrated her 18th birthday when the Appellant offered to marry her. That it was said that it was the birthday that was meant to make her an adult. Though she said that she could not remember the date the dowry was paid, she said that it was paid that year, i.e. 2023. Going by the evidence of her father that the complainant was born in 2005, the complainant attained the age of 18 years sometimes in 2023. It is then possible that the complainant was born on 20/4/2025 as stated by her father. That is why she celebrated her 18th birthday in 2023. The evidence of the complainant indicated that the Appellant engaged in sex with her after dowry had been paid and after she had celebrated her 18th birth day. The complainant had therefore attained the age of 18 years when she engaged in sexual intercourse with the appellant. She did not explain why she told the court that she was aged 17 years when she had already celebrated her 18th birth day. 45.The dental surgeon PW5 stated that his opinion that the complainant was aged 17 years was based on examination of an x-ray dental film taken from the complainant. He however did not produce the dental film before the court. That aside, he said that his opinion had an error margin of plus or minus one year. In the case cited above by counsel for the appellant the court said that medical reports on age assessment could have error margins of 2 years. This could place the age of the complainant at 19 years at the time the sexual intercourse took place. 46.In view of my finding that the complainant had celebrated her 18th birthday at the time she engaged in sex with the Appellant and considering that there was no concrete documentary evidence on her age, there is a possibility that the complainant was above the age of 18 years when she engaged in sexual intercourse with the Appellant. There was no full proof evidence that the complainant was at the material time below the age of 18 years. The appellant was entitled to the benefit of doubt. The element of age was therefore not sufficiently proved. 47.The upshot is that this court finds merit in the appeal. Consequently, the conviction entered by the trial court on the Appellant is quashed and the sentence thereof set aside. I order the appellant be set at liberty forthwith unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 10TH JULY 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Farhan