https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12802

Juma v Republic (Criminal Appeal E017 of 2025) [2026] KEHC 12802 (KLR) (6 August 2026) (Judgment) Neutral citation: [2026] KEHC 12802 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E017 of 2025 WN Molonko, J August 6, 2026 Between Charles Onyango Juma Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. M. Okuche in Sexual Offences Case No. E039 of 2022 of the Migori Chief Magistrates Court) Judgment 1.The Appellant Charles Onyango Juma was convicted on the charge of defilement of a girl aged 12 years contrary to section 8(1) (2) of the Sexual Offences Act No. 3 of 2006 and sentenced to 20 years imprisonment on the 19th day of February 2025. 2.He was charged with an alternative charge of committing an indecent Act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. 3.The particulars were that on diverse dates between 13th August, 2022 and 26th August, 2022 at [Particulars Withheld] village, Manyatta Sub Location within Suna East Sub County in Migori County within the Republic of Kenya, he intentionally caused his penis to penetrate the vagina of AOO a child of 12 years. 4.Being dissatisfied with the conviction and sentence, he filed this appeal and raised the following grounds of appeal:a.That the prosecution failed to proof the case beyond reasonable doubt.b.That no prima facie case was established to warrant a conviction that is safe.c.The trial court erred in law by disregarding the sentencing policy guidelines.d.The sentence meted is harsh, excessive and punitive in the circumstances. 5.The Appellant urged this court to quash the conviction and set aside the sentence, review and/or reduce or substitute with probation. 6.This appeal was admitted for hearing and directions issued that the same be canvassed by way of written submissions which were duly filed and placed on record. 7.The Appellant by his written submissions, stated that the prosecution evidence was contradictory, marred with inconsistencies, discrepancies and glaring gaps that weakened the case. 8.On age, the appellant noted that the document produced was a photocopy which was not certified as required by section 66 of the Evidence Act. He also contested that a P3 form is not a conclusive document for the purposes of establishing the age of a person. 9.On the issue of penetration, the appellant submitted that the maker of the document did not testify. He contested that the testimony was doubtful and could not be relied on to secure a conviction. He further stated that a broken hymen is not conclusive proof of penetration. He further pointed out that he was not examined and there is no way he could have been linked to the offence. He relied on the case of Ben Mwangi v Republic Nairobi CA No. 471 (2001) EKLR where the court held that “…the doctors finding did not connect the date of the alleged offence with the age of the injury noted.” 10.The Appellant also submitted that based on the demeanour of the complainant, her evidence could not be relied on as she and the father gave contradicting and different versions of her educational status. She indicated she was a class 8 student at Kadila Primary School and at some point, the father indicated that she was a pupil at junior secondary school. He stated that the headteacher of the primary school was not called to testify. 11.He also contested that critical witnesses were not called to testify including the chief, the village elder and the headteacher. He stated that the omission of their evidence caused him injustice and therefore a miscarriage of justice. 12.The Respondent on the other hand extensively submitted on the grounds of appeal as follows- 13.On age, the Respondent pointed out that birth certificate serial No. 232xx00 was produced as an Exhibit 1 by PW4 indicating that the complainant was 12 years at the time of the alleged defilement. 14.On penetration, the Respondent submitted that PW1 informed the court that she had been living with the appellant in his house for two weeks which period they would have sex on several occasions. The medical evidence produced by PW3, the clinical officer, corroborated her assertions. PW3 testified that the minor was defiled as the hymen was broken and her cervix was red which was an indication that the minor had had sexual intercourse. 15.On identification, the Respondent submitted that PW1 informed the court that she was not known to the perpetrator but she was taken to him by one Okoth who was her neighbour. She stated that she stayed with the appellant for two weeks as husband and wife. PW4 the area chief together with the police found the appellant together with the complainant in the appellant’s house and therefore no doubt as to the identity of the perpetrator. 16.Being the first appeal, the duty of this Court is well settled in the case of Okeno Vs. Republic (1972) EA 32 where the court held-“An appellant on a first appeal is entitled to expect the evidence as a whole to be substituted 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 in itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala v. R.,(1957) E.A. 570). It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding 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.” 17.This position was also settled in the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Others (1968) EA 123 where the court held that the appellant court was not bound by the findings of fact of the trial court but that in re-considering and evaluating the evidence so as to draw its own conclusions, it had to bear in mind that it neither saw nor heard the witnesses testify, and this make an allowance in that respect. 18.Having evaluated the evidence of the trial Court, the Appellant’s Grounds of Appeal, his written submissions and those of the Respondent, this Court frames the issues placed before it for determination as follows-i.Whether the prosecution proved its case beyond reasonable doubt considering the three ingredients forming the offence of defilement; andii.Whether the sentence was harsh, excessive or punitive in the circumstances. 19.In determining whether or not the prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court will consider the ingredients of the offence of defilement as settled in in the case of George Opondo Olunga vs Republic [2016] eKLR : age, penetration and positive identification of the perpetrator. 20.On age, the appellant strongly submitted that the age of the complainant was not conclusively proved. He argued that there were conflicting accounts from PW1, the complainant, who said she was a grade 8 pupil, and PW3, the father who said the daughter was in junior secondary school. 21.The court of Appeal decision 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 prove 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." 22.Further, the Sexual Offences Rules of Court, 2014 under Rule 4 provides that; -“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.” 23.From the evidence on record, the complainant’s birth certificate serial No. 232xx00 was produced in court indicating the minor was born on 5.3.2010. The appellant did not challenge its production nor adduce any other evidence in the contrary. With this, this court finds that the complainant was 12 years at the time of the incident and was well withing the delimitation of age as set under section 8 subsection 3 of the Sexual Offences Act. 24.On identification, PW1 informed the court that the appellant was not known to her. She was taken to him by her neighbor named Okoth. She stated that they lived together in the appellant’s house as husband and wife for about two weeks and there was no doubt as to his identification. He was arrested naked with the complainant and there was no mistake as to his identity. 25.On penetration, the appellant submitted that there was no conclusive evidence to prove penetration. He pointed out that a broken hymen is not conclusive evidence. He also contended that the maker of the document was not called to produce it and therefore could not be conclusively relied on. 26.Although the Appellant was emphatic that the evidence left the prime ingredient of defilement weak, the evidence on record shows that the complainant was defiled having cohabited with appellant for about two weeks as husband and wife. The minor testified that the appellant had sex with her on several occasions. Her evidence was corroborated by the scientific evidence of PW4, the clinical officer. As per the medical report and treatment notes on record, he stated that he examined her on 14th September, 2023 and observed that the hymen was broken with no injuries and lacerations. He further observed that her cervix was red, an indication of sexual intercourse. He concluded that there was defilement. 27.On whether the failure to call critical witnesses including the chief, the village elder and the headteacher to testify, this court notes that the prosecution has the prerogative to call only those witness who add value to its case and not necessarily a particular number of witnesses. Section 143 of the Evidence Act stipulates as follows-“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” 28.The choice of witnesses therefore, did not prejudice the appellant’s case. 29.This court finds and holds therefore, that the prosecution proved its case to the required standard, which in criminal cases, proof beyond reasonable doubt and that the appellant took unfair advantage of the minor and unlawfully cohabited with her and defiled her for about two weeks. 30.On sentence, having convicted the Appellant herein, the trial court did not err when he sentenced him to twenty (20) years imprisonment as that is what is provided by the law as the minimum sentence. Section 8(3) of the Act states-“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable on conviction to imprisonment for a term of not less than 20 years.” 18.Based on the circumstances of this case, including the age of the minor, and the provisions of section 8(3) of the Sexual Offences Act, this court will not interfere with the sentence imposed by the trial court. 31.From the foregoing reasons, the grounds of appeal are not merited and hereby dismissed. In this regard, his conviction and sentence are upheld. 32.Orders accordingly. DATED SIGNED AND DELIVERED THIS 6TH DAY OF AUGUST 2026…………………………………W.N. MOLONKOJUDGEIn the presence of:-No appearance for the State.Appellant - Charles Onyango Juma presentSusan Nzioka /Court assistant.