https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8882

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **CRIMINAL APPEAL NO.E012 OF 2025** **SULTAN KAZUNGU KARISA…………………….………APPELLANT** **VERSUS** **REPUBLIC……………………….…..…………………….RESPONDENT** *(Being an appeal from original conviction and sentence by Hon.L.N.Wasige, Senior Principal Magistrate in Garsen Principal Magistrate’s Court Sexual Offence Case No.E016 of 2024 delivered on 26/2/2025)* **JUDGMENT** 1. The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(3) of the [Sexual Offences Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2006/3) No.3 of 2006 and was sentenced to serve 15 years imprisonment. The particulars of the offence were that on the 16th May 2024 at (name withheld) village in Tana Delta Sub County within Tana River County he intentionally and unlawfully caused his penis to penetrate the vagina of A.K.B. (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. The grounds of appeal as per his amended grounds of appeal ae that: 3. The learned trial magistrate erred in both law and fact by failing to consider that the evidence adduced by PW1 and her witnesses was incredible and unreliable (sic) falls short of Section 124 of the Evidence Act and Section 2 of the Sexual Offences Act. 4. The learned trial magistrate erred in both law and fact by failing to consider sharp contradictions inconsistencies and discrepancies in particular case and particular evidence of PW1 and any other witnesses gaps in the prosecution case (sic) leaving much to be desired contrary to Section 163(3) of the Evidence Act. 5. The learned trial magistrate erred in both law and fact by failing to consider that the prosecution failed to discharge its burden of proof to the legal required standard threshold contrary to Section 107(1) of the Evidence Act. 6. The learned trial magistrate erred in both law and fact by failing to consider that the imposed sentence upon the Appellant was harsh, unjust and excessive in the circumstances. 7. The learned trial magistrate erred in both law and fact by rejecting the Appellant’s strong defence. 8. The prosecution called 5 witnesses in the case while the Appellant was the only witness in his case. **Prosecution case** 1. The case for the prosecution was that the complainant was at the material time a form one student aged 16 years. She was residing with her parents, including her father PW2. 2. It was the evidence of the complainant that she met the Appellant at her village in the month of May 2024. He requested her to be his girlfriend and she agreed. That in the same month of May 2024 he invited her to his house. She went there and they had sex whereby he inserted his penis into her vagina. They were found by policemen in his house and they were arrested. 3. The father to the complainant PW2 testified that the complainant left home in the month of May 2024 to go and greet her aunt. That later on her aunt called them and informed them that the complainant had left home and had not returned. That PW2 reported to the police. He accompanied police officers who included PC Otieno PW3 to the home of the aunt of the complainant. They made inquiries and they were told that the complainant had been seen in the house of the Appellant. They went to the house of the Appellant where they found both the complainant and the Appellant inside the house of the appellant. They were lying naked on a bed. They were arrested and taken to the local police post. The complainant was taken to Ngao sub-county hospital where she was examined by a clinical officer PW5 who found her with a missing hymen that was not freshly broken. The clinical officer completed her P3 form. 4. The case was investigated by PC Maweu PW4. At the time he commenced the investigations, the Appellant had been arrested and P3 form completed. He charged the Appellant with the offence. During the hearing, the father to the complainant PW2 produced the complainant`s birth certificate as exhibit, P.Exh.1. The clinical officer PW5 produced the treatment notes and the P3 form as exhibits, P.Exh.2 and 3 respectively. **Defence case** 1. When placed to his defence the appellant stated in a sworn statement that he is a boda boda operator. That he does not know the complainant and he first saw her in court. That on the 15/5/2024 he was on his way back home after dropping a passenger when he met with policemen on motor cycles. They were in company of PW2. They arrested him and took him to the police post. He was not told the reason for his arrest. He said that the case was fabricated by PW2 as there was a time he found him having sex with his brother`s wife in the bush. He gave him Ksh.4,000/= to buy his silence. He denied in cross-examination that he was arrested at his house. 2. The appeal proceeded by way of written submissions. **Submissions** 1. The Appellant submitted that the evidence of the complainant was not credible as she told the trial court that she was a virgin before she had sex with the Appellant yet the clinical officer who examined her PW5 found that she had had sex before the date she was alleged to have been defiled by the Appellant. The Appellant faulted the trial magistrate for not considering the inconsistency. He submitted that penetration was not proved beyond reasonable doubt. 2. The Appellant on the other hand submitted that the ingredients of the offence of defilement were proved beyond reasonable doubt. That the age of the complainant was proved by the birth certificate which evidence was not controverted by the defence. That the evidence of the complainant that the Appellant inserted his penis into her vagina was corroborated by the evidence of the clinical officer PW5 who found her with a broken hymen. That the Appellant was a girlfriend to the complainant and was well known to her. Therefore, that he was well identified. **Analysis and determination** 1. 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.”** 1. The Appellant submitted that the ingredients of the offence of defilement were not proved. The ingredients of the said offence 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.** 2. The trial magistrate in convicting the Appellant of the offence found that the age of the complainant was proved by the birth certificate that indicated that the complainant was born in March 2008 and was thus aged 16 years in May 2024. That the clinical officer PW5 found the complainant with a broken hymen which was prove that her vagina was penetrated and though it was not freshly broken that did not negate the fact that the Appellant had sex with her. That the Appellant and the complainant were found naked in his house. That the Appellant was a girlfriend to the complainant and was well known to her. His evidence that he did not know her was a lie. That there was no contradiction in the evidence adduced by the prosecution witnesses. Further that the Appellant did not cross-examine the complainant`s father PW2 on whether they had any differences and therefore his evidence that the case was fabricated by PW2 can only have been an afterthought. Therefore, that the charge was proved against the Appellant. 3. I have on my part re-evaluated the evidence adduced against the Appellant. The Appellant did not dispute the age of the complainant. A birth certificate was produced in proof of the age. The age of the complainant was proved at 16 years. 4. On the issue of penetration, the fact that the complainant was found with a broken hymen did not by itself prove penetration by the Appellant. It is trite that a broken hymen is not proof of defilement as the same can be broken by other factors such as vigorous exercise, see. **P.K.W v Republic** **(2012) KECA 103 (KLR)** The hymen of the complainant in this case was not freshly broken. There was no medical evidence to support the charge of defilement. 5. However, absence of medical evidence in support of a charge of defilement is not fatal to a case as defilement can be proved by other ways other than by way of medical evidence. In the case of**Kassim Ali v Republic Criminal, Appeal No. 84 of 2005,** the Court of Appeal held that:- **“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”.** 1. In addition, section 124 of the Evidence Act allows a 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 so holding. 2. I am satisfied that the complainant was telling the truth that she was defiled by the Appellant on 15/5/2024. The complainant was found sleeping on the same bed with the Appellant while they were naked. The evidence of the father to the complainant PW2 and that of the arresting officer PW3 to that effect was not challenged in cross-examination. There was no reason for the arresting officer PW3 to lie on the issue. The fact that the two were found sleeping together was sufficient circumstantial and corroborative evidence that pointed to the fact that the Appellant defiled the complainant. The fact that the complainant was not a virgin at the time of defilement by the Appellant did not negate the defilement. The Appellant`s defence that he did not know the complainant was a lie. There was no possibility of mistaken identity. 3. The trial court dismissed the defence of the Appellant that the case was fabricated by the complainant`s father as an afterthought. Indeed, the Appellant never raised the issue when he cross-examined the father to the complainant, PW2. The Appellant brought up the issue in his defece. I agree with the trial court that the defence was an afterthought. 4. Consequently, I find the evidence adduced against the appellant was overwhelming and that complainant was telling the truth that the Appellant defiled her on 15/5/2024. The charge against the Appellant was proved beyond reasonable doubt. The conviction is thus upheld. 5. The Appellant argued that the sentence imposed on him was harsh and excessive. The charge against the Appellant ought to have been under Section 8(4) of the Sexual Offences Act which provides for a minimum sentence of 15 years for defiling a child of the age of between 16 and 18 years. The complainant herein was in that age bracket. The Appellant was given the minimum sentence provided by the said section. The trial court did not have a discretion in the matter. The sentence cannot be said to be harsh or excessive. 6. The upshot is that I do not find any merit in the appeal and the same is dismissed. **Delivered, dated and signed at GARSEN this 10th day of June, 2026** **J.N. NJAGI** **JUDGE** **In the presence of:** **Mr. Oluoch for Respondent** **Appellant – present virtually at G.K. Prison Malindi** Court Assistant - Rahma